SMS Terms and Conditions

Mobile Terms & Conditions 
Original Penguin offers its customers mobile alerts regarding sale promotions, event information, product launch announcements, cart reminders, back in stock alerts, price drop alerts, low inventory alerts, and other marketing offers by SMS message (the "Service") on 1 (844) 426-6850. By participating in the Service, you are agreeing to these Terms and to the PRIVACY POLICY. 

Signing Up and Opting-In to the Service 
Enrollment in the Service requires you to provide your mobile phone number and to agree to these terms and conditions. You may not enroll if you are under 18 years old. Before the Service will start, you will need to agree to these Terms. Original Penguin reserves the right to stop offering the Service at any time with or without notice. 
By opting into the Service, you: 
  1. Authorize Original Penguin to use an automatic telephone dialing system to send recurring automated text messages to the mobile phone number associated with your opt-in (i.e., the number listed on the opt-in form or, if none, the number from which you send the opt-in, or, if none, the number on file for the account associated with your opt-in). 
  2. Acknowledge that you do not have to agree to receive messages as a condition of purchase. 
  3. Confirm that you are the subscriber to the relevant phone number or that you are the customary user of that number on a family or business plan and that you are authorized to opt in. If you get a new mobile number, you will need to sign up for the program with your new number.
  4. Consent to the use of an electronic record to document your opt-in. To request a free paper or email copy of the opt-in or to update our records with your contact information, please contact us at 3000 NW 107th Ave. Miami, FL 33172. To view and retain an electronic copy of these Terms or the rest of your opt-in, you will need (i) a device (such as a computer or mobile phone) with Internet access, and (ii) and either a printer or storage space on such device. For an email copy, you'll also need an email account you can access from the device, along with a browser or other software that can display the emails. 
Content You May Receive 
Once you affirm your choice to opt-in to the Service on 1 (844) 426-6850, your message frequency may vary. You may receive alerts about: 
  1. Sale promotions
  2. Event information
  3. Product launch announcements
  4. Cart reminders
  5. Back in stock alerts
  6. Price drop alerts
  7. Low inventory alerts
  8. Shipment information

Charges and Carriers 
Message and data rates may apply. Please consult your service agreement with your wireless carrier or contact your wireless carrier to determine your phone's pricing plan and the charges for sending and receiving text messages. You acknowledge that you are responsible for any message, data or other charges incurred (usage, subscription, etc.) as a result of using the Service. SMS consent is not a condition of purchase. 
Supported carriers are AT&T, T-Mobile, Verizon Wireless, Sprint, Boost, Virgin Mobile, U.S. Cellular, Cricket, Alltel, Cincinnati Bell, Cellcom, C-Spire, nTelos, MetroPCS, and other smaller regional carriers. The Service may not be available on all wireless carriers. Original Penguin may add or remove any wireless carrier from the Service at any time without notice. Original Penguin and the mobile carriers are not responsible for any undue delays, failure of delivery, or errors in messages. 

To Stop the Service 
To stop receiving text messages from Original Penguin, text the word STOP to 1 (844) 426-6850 any time or reply STOP to any of the text messages you have received from Original Penguin.  This is the exclusive method for opting out.  After texting STOP to 1 (844) 426-6850, you will receive one additional message confirming that your request has been processed. You acknowledge that the text message platform may not recognize and respond to unsubscribe requests that do not include the STOP keyword command and agree that Original Penguin and its service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from Original Penguin through any other programs you have joined until you separately unsubscribe from those programs. These Terms still will apply if you withdraw the consent mentioned above or opt out of the Service.

Questions 
You can text HELP for help at any time to 1 (844) 426-6850. This will provide you with support@originalpenguin.com. You can also contact us at 3000 NW 107th Ave. Miami, FL 33172. 

Arbitration and Class Action Waiver

Please read this carefully.  It affects your rights. Any dispute or claim relating in any way to your use of Perry Ellis International will be resolved by binding arbitration, rather than court.

This agreement to arbitrate is intended to be broadly interpreted, and expressly includes claims brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., or any other statute, regulation, or legal or equitable theory.  You and Perry Ellis International hereby agree that the Federal Arbitration Act, 9 U.S.C. 1, et seq. (“FAA”) applies to this agreement to arbitrate, and governs all questions of whether a dispute is subject to arbitration.  Unless you and we agree otherwise in writing, arbitration shall be administered by the American Arbitration Association’s Consumer Arbitration Rules in effect at the time of filing of the arbitration (the “AAA’s Rules”).  However, just as a court would, the arbitrator or arbitrators must honor the terms and limitations in this Agreement, and can award damages and relief (including any attorneys’ fees) authorized by law and/or the AAA’s Rules.  The arbitration decision and award is final and binding, with some exceptions under the FAA, and judgment on the award may be entered in any court of competent jurisdiction.  YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND Perry Ellis International ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN ANY CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING.

THIS AGREEMENT DOES NOT ALLOW FOR CLASS ARBITRATIONS EVEN IF THE PROCEDURES OR RULES OF THE AAA WOULD.  RATHER, YOU AND WE ARE ONLY ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDUAL, BILATERAL BASIS.  FURTHER, AND UNLESS YOU AND PERRY ELLIS INTERNATIONAL AGREE OTHERWISE IN WRITING, THE ARBITRATOR(S) MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY’S CLAIMS WITH ANY OTHER PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR COLLECTIVE PROCEEDING.

You and Perry Ellis International are each responsible for our respective costs relating to counsel, experts, and witnesses, as well as any other costs relating to the arbitration. Perry Ellis International, however, will pay for the arbitration administrative or filing fees, including the arbitrator and/or other AAA case management fees, for any claim seeking $75,000 or less, unless the claim is determined by the arbitrator to be frivolous.  Otherwise, the AAA’s Rules regarding costs and payment apply.
This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
If any term of this Section (Arbitration and Class Action Waiver) is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.  If application of this Severability provision should materially and adversely affect the economic substance of the transactions contemplated hereby, the Party adversely impacted shall be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the Party seeking such compensation.

Limitation of Liability
Except where prohibited by law, in no event shall Original Penguin be liable for any special, indirect, or consequential damages or any damages whatsoever, including loss of profits or data, whether in an action in contract or tort, arising out of the use or performance of the program, or the performance or non-performance by Original Penguin or any third-party providers of products or services related to this program. This limitation of liability shall apply regardless of whether the claim asserted is based on contract, negligence, or any other theory of recovery, even if Original Penguin has been advised of the possibility of such damages.

Applicable Law
Unless prohibited by the laws of your jurisdiction, any controversy or claim arising out of or relating to these Terms & Conditions or relating to the use of the program shall by governed by the laws of the State of Florida, United States of America, exclusive of the choice of law rules thereof, and shall be resolved in a state or federal court in Miami-Dade County, Florida.

Merger; Waiver; Severability
These Terms & Conditions constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior oral and written agreements. No failure or delay on the part of Original Penguin in exercising any right or remedy hereunder or enforcing the terms and conditions of these Terms & Conditions will operate as a waiver thereof. If any provision of these Terms & Conditions is found to be invalid, unenforceable, or void, (i) that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and (ii) the legality, validity and enforceability of the remaining provisions of these Terms & Conditions shall not be affected or impaired thereby.

Changes to Terms
These Mobile Terms and Conditions are subject to change at any time without notice.