Terms and Conditions of Use

 

Welcome to the Penguin Fresh website. Please review the terms and conditions of use carefully, as they govern your use of PenguinFresh.com (the "Site").

 

The following terms and conditions of use are an agreement (the "Agreement") between Penguin Fresh and you. Your use of the Sites constitutes your agreement to follow and be bound by the Agreement. We reserve the right to modify this Agreement at any time in our sole discretion without prior individual notice. Any modifications to this Agreement will be posted on the Sites. For this reason, we encourage you to review the Agreement whenever you use any of the Sites. If you do not agree to these terms, please do not use the Sites.

 

Site Transactions

We reserve the right to refuse any order you place with us. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made.

 

Right to Change Sites

We reserve the right, at any time in our sole discretion, to: modify, suspend or discontinue the Sites or any service, content, feature or product offered through the Sites, with or without notice; charge fees in connection with the use of the Sites; modify and/or waive any fees charged in connection with the Sites; and/or offer opportunities to some or all users of the Sites. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site, or of any service, content, feature or product offered through the Sites.

 

Site Contents

Unless otherwise noted, the Sites, and all materials on the Sites, including text, images, illustrations, designs, icons, photographs, video clips and other materials, and the copyrights, trade-marks, trade dress and/or other intellectual property in such materials (collectively, the "Contents"), are owned, controlled or licensed by Penguin Fresh.

 

The Sites and the Contents are intended solely for personal, non-commercial use. You may download or copy the Contents displayed on the Sites for your personal use only. No right, title or interest in any downloaded Content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or exploit in any way any of the Contents or the Sites.

 

Personal Information Submitted Through the Sites

Your submission of personal information through the Sites is governed by our privacy policy, which can be reached by clicking on the "Privacy Policy" link located in the footer section of the Sites (the "Privacy Policy"). This Agreement incorporates by reference the terms and conditions of the Privacy Policy.

 

Currency Information

Unless otherwise indicated, prices displayed on the Sites are quoted in Canadian Dollars.

 

Tax Policy

Tax charges are based on applicable federal, provincial and harmonized sales tax rates based on the delivery address associated with your order. Where required, sales tax will also be applied to the shipping and handling charges. If you return an item for a refund, you will also receive a refund for the sales taxes you paid for that item. You will not receive a refund for the sales taxes you paid on the shipping and handling of that item, as the shipping and handling charges are non-refundable once an item has been shipped. If you have questions about the sales taxes on your invoice, please call us anytime at (905) 760-6203

 

Tax Exempt Purchases

If you are making a purchase for a tax-exempt organization or are an individual that qualifies for a tax exemption, please contact our Customer Service team at (905) 760-6203. To ensure compliance with federal and provincial tax laws, all requested forms and information must be received and verified by our Customer Service team before a tax refund can be processed.

 

Errors, Inaccuracies, and Omissions

Occasionally there may be information on our Sites that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information or cancel orders if any information on the Sites is inaccurate at any time without prior notice (including after you have submitted your order).

 

Promotions

In addition to the terms and conditions of this Agreement, any contests, sweepstakes, surveys, games or similar promotions (collectively, "Promotions") made available through the Sites may be governed by specific rules that are separate from this Agreement. By participating in any such Promotion, you will become subject to those rules, which may vary from the terms and conditions set forth herein. To the extent that the terms and conditions of such rules conflict with this Agreement, the terms and conditions of such rules shall control. Promotions can be changed at any given time prior to notice. 

 

Links to Other Web Sites and Services

The Sites may contain links to other Web sites that are not under the control of Penguin Fresh or its affiliates. Neither Penguin Fresh nor any of its affiliates has any responsibility for the linked Web sites nor does linking constitute an endorsement of any linked Web site. Links are provided solely for the convenience and information of the Sites' users.

 

Passwords

You are solely responsible for maintaining the confidentiality of your password and user account information. You must notify us immediately in the event of any known or suspected unauthorized use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your or anyone else's password. You are solely responsible for any and all activities which occur under your user account. You agree to immediately notify us of any unauthorized use of your user account or any other breach of security known to you.

 

Online Purchases

All orders made through the Site will be subject to the terms and conditions outlined here relating to the purchase in question and the following additional terms and conditions. Pricing and other terms and conditions relating to the purchase of the product in question will be as stated in applicable website, and this information may be changed at any time without notice. Prices may differ from those for purchases made through other channels. You have a legal obligation to pay for any orders indicated to be made by you. You must be of the age of majority in your jurisdiction to make online purchases.

 

Site Warranty

Subject to the Penguin Fresh return of goods policy, the information, materials and services contained on this site, including but not limited to the graphics, links and other items, are being provided to you on a "as is" basis with no warranty. Penguin Fresh does not warrant or guarantee the accuracy, adequacy or completeness of this information and materials, and expressly disclaims liability for any errors and/or omissions in this information and materials. To the maximum extent permitted by law, Penguin Fresh disclaims all representations and warranties of any kind, whether expressed, implied or statutory, including without limitation the implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose.

In addition, Penguin Fresh does not warrant, guarantee or make any representations regarding the security of accounts, or that this site is free from destructive materials, including but not limited to computer viruses, hackers, or other technical sabotage, nor does it warrant, guarantee or make any representations that access to this site will be fully accessible at all times, uninterrupted, or error free.

 

Product Quality and Availability

 At Penguin Fresh, we believe in offering our customers quality ingredients at a competitive price. We receive frequent shipments of fresh products to assure you high quality. If you're not happy with the quality of your products, please contact us at info@penguinfresh.com.

Our products are kept in the cool chain at every step of delivery from harvest to the Penguin Pick-Up unit.  To maintain the integrity of products after pick-up, we recommend that you immediately refrigerate or freeze perishable items.  If the product we deliver to you is not fresh, please notify us by midnight at (905) 760-6203 on the day that you receive your order, and we will provide you with a credit that you can use towards another order.

 

Delivery Restrictions

To maintain the cold chain, we currently only deliver to the Penguin Pick-Up locations as stated on the About Us tab.

Delivery is available on all business days.

Orders must be received before 12AM EST for next day delivery. Delivery is available Monday through Friday, excluding statutory holidays.  Orders received past this cut off time will be delivered the next delivery day.  If you would like to cancel your order, you must call (905-760-6203) as soon as possible to arrange cancellation.  For orders cancelled, you must pay a $4 restock fee.  If the order is already out for delivery, you must pay in full for the order.

In the case of inclement weather or unforeseen delivery complications, it may be necessary to make adjustments to our delivery schedule, which will cause us to delay or suspend the delivery times. If there will be a significant delay, a customer service representative may call or e-mail you to let you know the status of your delivery time.

If something is missing from your order, please call us at (905) 760-6203.

Frozen food is held for 3 days, excluding statutory holidays and fresh food is held for 2 days, excluding statutory holidays.  We will not guarantee the freshness or assume liability for orders left at the Penguin Pick-Up beyond this time period. 

 

Limitation of Liability

In no event will Penguin Fresh be liable for any damages, including without limitation direct or indirect, special, incidental, compensatory, exemplary or consequential damages, losses or expenses, including without limitation lost or misdirected orders, lost profits, lost registrations, lost goodwill, or lost or stolen programs or other data, however caused and under any theory of liability arising out of or in connection with (1) use of this site, or the inability to use this site by any party; or (2) any failure or performance, error, omission, interruption, defect, delay in operation or transmission; or (3) line or system failure or the introduction of a computer virus, or other technical sabotage, even if Penguin Fresh, its employees or representatives thereof, are advised of the possibility or likelihood of such damages, losses or expenses.

 

Disclaimer

NEITHER PENGUIN FRESH NOR ANY OF ITS AFFILIATES WARRANT THAT THE SITES OR ANY FUNCTION CONTAINED IN THE SITES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES OR THE SERVERS THAT MAKE THE SITES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

PENGUIN FRESH AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY DUTY TO UPDATE OR REVISE THE CONTENT OF THE SITE, ALTHOUGH WE MAY MODIFY THE CONTENT AT ANY TIME WITHOUT NOTICE. YOUR USE OF THE SITE IS AT YOUR SOLE RISK, AND YOU ASSUME FULL RESPONSIBILITY FOR ANY COSTS ASSOCIATED WITH YOUR USE OF THE SITES. PENGUIN FRESH AND/OR ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF THE SITE.

 

Neither Penguin Fresh nor any of its affiliates represent or warrant that the Site, or any part thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Sites do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. We may limit the Sites' availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.

 

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT PENGUIN FRESH AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SITES; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE SITES OR ANY WEBSITE OR WEBSITES LINKED TO THE SITES, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITES; (D) UNAUTHORISED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON THE SITES; OR (F) ANY OTHER MATTER RELATING TO THE SITES. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, IN CONNECTION WITH YOUR USE OF THE SITES. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITES, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THE SITES.

 

Indemnification

You agree to defend, indemnify and hold Penguin Fresh and its affiliates and each of their respective officers, directors, employees, shareholders, agents and representatives harmless from and against any and all claims, damages, costs and expenses, including legal fees, arising from or related to your use of the Sites and/or your breach of any representation, warranty, condition or other provision of the Agreement.

 

Dispute Resolution

Mindful of the high cost of litigation, not only in dollars but also in time and energy, both you and Penguin Fresh agree to the following dispute resolution procedure: Except to the extent prohibited by applicable law, in the event of any controversy, claim, action or dispute arising out of or related to any transaction conducted on the Sites, or the breach, enforcement, interpretation, or validity of this Agreement or any part of it ("Dispute"), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute.

 

Notice shall be sent

 

(1) to Penguin Fresh at: 700 Applewood Cres. Suite 100, Vaughan ON L4K 5X3.

(2) to you at: your last-used billing address or the billing in your online profile.

To the maximum extent permitted by law, both you and Penguin Fresh agree that this dispute resolution procedure is a condition precedent which must be satisfied prior to initiating any litigation or filing any claim against the other party.

 

Choice of Law and Jurisdiction

To the maximum extent permitted by law, this Agreement shall be construed in accordance with the laws of Ontario and Canada, as applicable therein, without regard to any conflict of law provisions. Any dispute arising under this Agreement shall be resolved exclusively by the Superior Court of Justice or Federal Court of Canada residing in Toronto, Ontario.

 

General

The waiver of any provision of the Agreement shall not be considered a waiver of any other provision or of Penguin Fresh’s right to require strict observance of each of the terms herein. If any provision of the Agreement is found to be unenforceable or invalid for any reason, that provision shall be severable, and all other provisions shall remain in full force and effect. This Agreement constitutes the entire agreement between us relating to your use of the Sites.

 

Penguin Fresh may assign its rights and obligations under the Agreement. The Agreement will inure to the benefit of Penguin Fresh's successors, assigns and licensees.

 

Termination

These terms are effective unless and until terminated by either you or Penguin Fresh also may terminate this Agreement at any time without notice, and accordingly may deny you access to the Sites, if in our sole judgment you fail to comply with any term or provision of the Agreement. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this Agreement for all purposes.