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Terms & Conditions

General

OriginalPenguin.com is the official website for Original Penguin®, a division and wholly owned subsidiary of Perry Ellis International, Inc. We ask that you abide by the terms and conditions of use that follow. Please read them carefully, because your use of the OriginalPenguin.com web site (the "Site") constitutes your agreement to be bound by these terms. If you do not agree to be bound by these terms and conditions of use, you may not access or otherwise use this Site. We reserve the right to revise these terms and conditions from time to time. When we make changes, we will post them here. You may wish to check this section from time to time, because your use of the Site following any changes indicates your agreement to be bound by those modifications.

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eGift Certificates

eGift Certificates may only be redeemed at our website, OriginalPenguin.com and through the phone by calling 866.674.8783.

You cannot use an eGift Certificate to purchase another eGift Certificate. The eGift Certificate has a cash redemption value of $0.01 and is not transferable or assignable. eGift Certificates cannot be cancelled by the purchaser of the eGift Certificate once they have been redeemed in part or in full.

Any unused balance will be placed in the recipient's account with OriginalPenguin.com and is not transferable. Your balance can be viewed at any time under the 'Order History' section of the Original Penguin website.

If the order exceeds the amount of the eGift Certificate, the balance must be paid by credit or debit card.

Regular OriginalPenguin.com terms and conditions apply to all purchases except where they conflict with these terms and conditions.

If you cancel an order for any item you have purchased by redeeming your eGift Certificate, your OriginalPenguin.com account will be credited with the amount redeemed. If you redeemed your gift certificate in part payment of any item, you have the right to request a cash refund in respect of the amount you paid using your credit/debit card. If you do not request a cash refund your OriginalPenguin.com account will be credited with the full amount paid.

OriginalPenguin.com will have the right to close customer accounts and request alternative forms of payment if a fraudulently obtained eGift Certificate is either redeemed through OriginalPenguin.com or is redeemed and used to make purchases on the Original Penguin site.

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Site Usage Policy

(A) Security

You are prohibited from violating or attempting to violate the security measures on the Site, including, without limitation:

  1. Using a false password or one belonging to another user or accessing data not intended for the user or logging into a server or account which such user is not authorized to access;
  2. Disclosing a password or permitting a third party to use a password or failing to notify us if a password is compromised;
  3. Attempting to probe, scan or test the vulnerability of the system or network or to breach security or authentication measures without proper authorization;
  4. Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, "flooding", "mail bombing" or "crashing";
  5. Sending unsolicited e-mail, including promotions and/or advertising of products or services;
  6. Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting; or
  7. Hijacking all or any part of the Site content, deleting or changing any Site content, deploying pop-up messages or advertising, running or displaying this Site or any Site content in frames or through similar means on another Site, or linking to the Site or any page within the Site, without our specific written permission.

(B) General Rules

You agree to use the Site only for lawful purposes and only for your own personal, non-commercial use. You may not use the Site to transmit, post, download, distribute, copy, display publicly, store or destroy material (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, patent, trademark, trade secret or other intellectual property rights of others or violate the privacy or publicity or other personal rights of others, or (c) that is libelous, obscene, offensive, threatening, defamatory, abusive or hateful.

(C) Violations

We have absolute discretion to determine if any use violates these rules, and to act as we deem appropriate in the event of any violation. Violations of system or network security may result in civil or criminal liability. We will investigate occurrences which may involve such violations and may involve, cooperate with, and make disclosures to, law enforcement authorities in identifying and prosecuting users who are involved in such violations.

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Site Contents

Unless otherwise noted, all materials, including images, illustrations, designs, icons, photographs, video clips, and written and other materials that appear as part of the Site (collectively, the "Contents") are property owned, controlled, licensed or used with permission by Original Penguin, Inc. and/or its parent company, and its subsidiaries and affiliates (collectively, "OPG"). The Site as a whole and its Contents are protected by copyright, trademark, trade dress and other laws and all worldwide right, title and interest in and to the Site and its Contents are owned by OPG or used with permission. Original Penguin and all other trademarks appearing on this Site are trademarks of OPG or are licensed or used with permission of the owner by OPG.

The Contents of the Site, and the Site as a whole, are intended solely for personal, non-commercial use by the users of the Site and may not be used except as permitted in these Terms of Use. You may download or copy the Contents and other downloadable materials displayed on the Site for your personal use only. No right, title or interest in any downloaded materials or software is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, publicly display, modify, create derivative works from, sell or participate in any sale of, or exploit in any way, in whole or in part, any of the Contents, the Site, or any related software. Nothing contained on this Site grants or should be construed as granting, any license or right to use, implied or otherwise, any trademarks, trade names, service marks, trade dress, copyrighted or other proprietary material displayed on this Site without the prior written consent of OPG or the owner of such material.

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Product Information

Original Penguin's products displayed on the Site are generally available in most cases in select department and/or company-owned stores in the United States and select foreign markets while supplies last. In some cases, merchandise displayed on the Site may not be available in stores and Original Penguin makes no representations or warranties that any of the products or services displayed on the Site will be available at any time or location. Any prices displayed on the Site are quoted in U.S. Dollars and represent manufacturer's suggested resale prices for the United States.

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Colors

We have made every effort to display as accurately as possible the colors of our products that appear on the Site. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.

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User Comments, Feedback, Postcards and Other Submissions

All comments, feedback, suggestions, ideas, and other submissions disclosed, submitted or offered to OPG on or by this Site or otherwise disclosed, submitted or offered in connection with your use of this Site (collectively, "Comments") shall be and remain OPG's property. Such disclosure, submission or offer of any Comments shall constitute an assignment to OPG of all worldwide right, title and interest in all copyrights and other intellectual properties in the Comments. OPG is and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay to user any compensation for any Comments; or (3) to respond to any user Comments.

You agree that none of the Comments submitted by you to the Site will violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right(s). You further agree that none of the Comments submitted by you to the Site will be or contain libelous or otherwise unlawful, abusive or obscene material. You are and shall remain solely responsible for the content of any Comments you make.

You agree that OPG may send electronic mail to you for the purpose of advising you of changes or additions to this Site, about any of OPG's products or services, or for such other purpose(s) as OPG deems appropriate. You agree that OPG may use and/or disclose information consistent with our Privacy Policy.

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Indemnification

You agree to defend, indemnify and hold OPG harmless from and against any and all claims, damages, costs and expenses, including attorneys' fees, arising from or related to your use of the Site.

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Links to Other Web Sites

To the extent that this Site contains links to outside services and resources, including other websites, the availability and content of which OPG does not own, operate or control, any concerns regarding any such service or resource, or any link thereto, should be directed to the particular outside service, resource or website. Any such links are provided solely as a convenience to you. If you click on these links, you will leave this Site. OPG makes no representations or warranties concerning and is not responsible for the content, information or other material on or accessed from any other websites that are not owned, operated or controlled by OPG.

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Disclaimer

ORIGINAL PENGUIN ASSUMES NO RESPONSIBILITY FOR AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, INTERRUPTION OF SERVICE OR VIRUSES THAT MAY INFECT YOUR COMPUTER OR TELECOMMUNICATIONS EQUIPMENT ARISING FROM YOUR ACCESS TO OR USE OF THIS SITE AND ITS CONTENTS. IN NO EVENT SHALL ORIGINAL PENGUIN OR ANY OF ITS AFFILIATED ENTITIES OR SUPPLIERS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, ATTORNEYS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, EVEN IF ORIGINAL PENGUIN HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION, UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE OR PERFORMANCE OF THE INFORMATION, SERVICES, PRODUCTS AND MATERIALS AVAILABLE FROM THE SITE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR THE EXISTENCE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

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Inaccuracy Disclaimer

From time to time there may be information on this Site that contains typographical errors, inaccuracies, or omissions, including those that may relate to product descriptions, pricing, and availability. We reserve the right to revoke offers or correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice, even if a credit card has already been charged. We apologize for any inconvenience this may cause you.

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Miscellaneous

Unless otherwise specified and except to the extent Original Penguin's products are offered for sale in the United States through this Site, this Site and the Contents thereof are displayed solely for the purpose of promoting Original Penguin's products and services available in the United States and select foreign markets. This Site is controlled and operated by OPG from its offices in Miami, Florida.

This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida, without giving effect to any conflict of law provisions. Any dispute arising under this Agreement shall be resolved exclusively by an appropriate federal or state court sitting in the State of Florida.

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Third-Party Trademarks

Third-party trade names, product names and logos, contained in this website may be the trademarks or registered trademarks of their respective owners.

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Notices for Reporting and Making Claims of Copyright Infringement

OPG will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA"). Pursuant to the DMCA, written notification of claimed copyright infringement must be submitted to the following designated agent for this website:

Perry Ellis International, Inc
Attn: General Counsel – Intellectual Property
3000 N.W. 107th Avenue
Miami, FL 33172

VIA FACSIMILE: (305) 406-0513
VIA EMAIL: legal@originalpenguin.com

Please send any concerns regarding our products or services to custserv@originalpenguin.com.

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Termination

This Agreement is effective unless and until terminated by either you or OPG. You may terminate this Agreement at any time. OPG also may terminate this Agreement at any time and may do so immediately without notice, and accordingly deny you access to the Site, if in OPG's sole discretion you fail to comply with any term or provision of this Agreement.

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