End User Agreement
IMPORTANT: BEFORE OPENING OR USING ANY WHISTLE-BRANDED DEVICE, INCLUDING, BUT NOT LIMITED TO, WHISTLE GPS, WHISTLE ACTIVITY MONITOR, WHISTLE 3, WHISTLE FIT, WHISTLE GO, AND WHISTLE GO EXPLORE (INDIVIDUALLY AND COLLECTIVELY REFERRED TO IN THIS AGREEMENT AS THE "PRODUCT")AND ANY OF WHISTLE’S PET LOCATION SERVICES INCLUDING, BUT NOT LIMITED TO THE ASSOCIATED WEBSITE AND OTHER SERVICES (INDIVIDUALLY REFERRED TO IN THIS AGREEMENT AS THE “SERVICE” AND COLLECTIVELY REFERRED TO IN THIS AGREEMENT ASTHE “SERVICES”), THE USER OF THE PRODUCT ("USER" or "YOU") MUST READ AND AGREE TO THIS AGREEMENT (THIS "AGREEMENT"). IF YOU DO NOT AGREE TO ALL OFTHE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE PRODUCT, AND YOU MUST, WITHIN 30 DAYS OF YOUR RECEIPT OF THE PRODUCT, (A)CONTACT KINSHIP PARTNERS, INC. ("WHISTLE," "WE,""US," "OUR") AT 855-999-0471 AND (B) ARRANGE FOR THE RETURN OF AND REFUND FOR THIS PRODUCT DIRECTLY FROM THE SOURCE FROM WHICH YOU PURCHASED IT. WHISTLE WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO ASSIST YOU WITH RETURNS AND REFUNDS. IF YOU WISH TO RETURN THIS PRODUCT BECAUSE YOU DONOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, SUCH RETURNS WILL ONLY BE ACCEPTED BY THE PURCHASE SOURCE IF THE PRODUCT IS IN ITS ORIGINAL PACKAGING.
This Agreement shall govern the sale or other provision of the Product and Services to User by Whistle and User’s use of that Product andServices. This Agreement includes and incorporates the following documents,
· Product Terms of Sale (the “Terms of Sale”) with respect to User’s purchase of the Product(s).
· Terms of Use (the "Terms ofUse") with respect to User’s use of the Services;
· Customer Contract; (the "CustomerContract") with respect to Whistle’s pet location services only; and
· Limited Product Warranty (the “Limited Product Warranty”) with respect to the Product(s);
· End User License Agreement (the “EULA”); and
· FCC Compliance Statement.
Please keep this Agreement and all of the associated documents and the Whistle FIT General Terms and Conditions (as applicable)together for your records.
Certain Products or Services may also be subject to and governed by the Whistle FIT General Terms and Conditions, a copy of which may be found in the documents included in your Product package at the time of purchase or at www.whistle.com/legal/fit-terms.
Contact Information
If you have any questions, concerns, complaints, or claims with respect to this Agreement, the Product(s), the Service(s), or the Website,you may contact us at:
Address: WhistleLabs, Inc.,
1355 Market Street, Suite 210
San Francisco, CA, 94103
Phone No.: 855-999-0471
Website: www.whistle.com
Current operating hours ofWhistle’s Customer Experience Center are available at https://support.whistle.com/hc/en-us
Privacy Policy
By using the Products, the Services and the AssociatedWebsite, you agree to the terms of the Whistle Privacy Policy located at www.whistle.com/legal/privacy‐policy/ which is incorporated into thisAgreement by this reference and made a part hereof. Whistler’s Privacy Policy describes Whistle’s treatment of personally identifiable information. The information we collect is stored and processed by us on servers in the UnitedStates and potentially other countries. By using the Services, you consent to any such transfer of your information outside your country and/or outside the country where you access or use the Services. Your acceptance of this Agreement-constitutes your acceptance and agreement to be bound by Whistle’s PrivacyPolicy. Whistle may revise the Whistle Privacy Policy from time to time pursuant to the terms of Whistle Privacy Policy.
The Following terms and conditions apply to the Terms of Sale, the Terms of Use, and theCustomer Contract.
DISPUTES AND MANDATORY ARBITRATION:
THIS ARBITRATION CLAUSE APPLIES TO THE TERMS OF SALE, THE TERMS OF USE AND THE CUSTOMER CONTRACT FOR RESIDENTS OF THE UNITED STATES. IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU MAY BE REQUIRED TO SETTLE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE SUCH CLAIMS BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE DECISION, MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE MORE LIMITED.
You may opt out of Mandatory Arbitration within the first sixty (60) days of receiving a copy of this Agreement. Please contact ourCustomer Experience Center at the contact information below if you would like to opt out of Mandatory Arbitration. If you do not opt out within sixty (60)days of receipt of this Agreement, you accept Mandatory Arbitration. If you opt out, you will not be required to arbitrate any claims. There is no penalty or other negative consequence if you do opt out.
General Arbitration Provisions: The FederalArbitration Act applies to this Agreement. Any dispute, controversy or claim between us, regardless of whether based on your subscription, the Services, the balance on your account, your Product, any prior account you had with us, your application, this Agreement, any prior agreement or any other facts, and regardless of whether the legal theory is based on this Agreement, another common law theory, a statute or another ground (each, a “Claim”),will be settled by neutral arbitration before the American ArbitrationAssociation (“AAA”), provided, however, that any Claim arising out of or related to the EULA will be governed by the provisions of the EULA. Claims within the applicable small claims limit in your jurisdiction may be brought ins mall claims court rather than arbitration.
Time Period for Asserting a Claim: You and we agree that any Claim must be commenced within one year after the Claim arose.If a Claim is not commenced within such one-year period, then the Claim is and shall be permanently barred.
Governing Law, Forum Selection, and Applicable Procedure: Unless you and we agree otherwise, the arbitration will take place in the county of your billing address (provided such address is in the United States). ForClaims over $10,000, the AAA’s Wireless Industry Arbitration (“WIA”)rules will apply. In large/complex cases under the WIA rules, the arbitrators must apply the Federal Rules of Evidence and a party may have the award reviewed by a panel of three new arbitrators. For Claims of $10,000 or less, the complaining party can choose either the AAA’s Supplementary Procedures forConsumer‐Related Disputes or individual action in small claims court. You can obtain procedures, rules and fee information from the AAA(www.ADR.org) or from us. Each of us may be required to exchange relevant evidence in advance. For claims of $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephonic hearing, or by an in‐person hearing. To initiate arbitration under this Agreement, contact the AAA, which will provide the necessary forms for you to submit. In the case of a conflict between any arbitration rules and this Agreement, this Agreement governs.
Arbitration Fees and Costs: In any arbitration between us, you will be responsible for paying your share of the arbitration fees up to the amount of any filing fees you would have incurred if you had brought a claim in the state or federal court closest to your billing address, and we will pay the remainder of the fees.
Class Action Waiver: YOU AND WE EACH WAIVE THE RIGHT TO BRING CLAIMS ON A REPRESENTATIVE OR CLASS BASIS, EVEN IF AAA OR WIA PROCEDURES OR RULES WOULD ALLOW IT. WE ARE EACH WAIVING THE RIGHT TO A JURY OR COURT TRIAL. The arbitrator may award monetary or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claim. IF THIS CLASS ACTION WAIVER IS DEEMED UNENFORCEABLE, THEN THE ENTIRE ARBITRATION PROVISION SHALL BE DEEMED UNENFORCEABLE. IN NO CIRCUMSTANCE SHALL CLASS CLAIMS BE BROUGHT OR ADJUDICATED IN ARBITRATION.
Claim Notices: If you or we have a Claim against the other, before initiating, joining, or participating in any lawsuit, arbitration or other legal proceeding, the complaining party shall give the other party: (1) a written notice of the Claim (referred to below as a “ClaimNotice”), explaining in reasonable detail the nature of the Claim and any supporting facts; and (2) a reasonable good faith opportunity (not less than 30days) to resolve the claim without the necessity of a legal proceeding. AnyClaim Notice directed to Whistle shall be sent to us at Kinship Partners, Inc., Attn: Legal Department, 1355 Market St, 2nd Floor, 94103. Any Claim Notice directed to you shall be sent to your address appearing in our records or, if you advise us that you are represented by counsel, to your attorney at your attorney’s office. If you or we fail to comply with this Claim Notices provision before commencing a lawsuit, arbitration or other legal proceeding, that failure shall be a complete defense to all claims asserted in such proceeding.
Use of Arbitration Award or Judgments in SubsequentCases: An arbitration award and any judgment confirming it only applies to the arbitration in which it was awarded and can’t be used in any other case except to enforce the award itself.
Cure Provision: You and we intend for both of us to have the right to arbitrate disputes on an individual basis as set forth above. If a court finds any reason to invalidate or refuse to enforce this arbitration provision, the party aggrieved by that decision shall have the right to take unilateral action to eliminate the basis for the court’s decision, such as by waiving any right or remedy it has under this Agreement or agreeing to additional fee or cost shifting. This cure right may be exercised during briefing of a motion to compel arbitration, during oral argument, or in a renewed motion to compel arbitration. If a renewed motion is filed, you andwe agree that the exercise of cure rights hereunder shall constitute new facts permitting such a renewed motion.
The Following terms and conditions apply to the Terms ofSale, the Terms of Use, and the Customer Contract.
Dispute Resolution for Residents of Canada
If you live in Canada, the laws of the province/territory where you live govern all claims, regardless of conflict of law principles. You and we irrevocably consent to the exclusive jurisdiction and venue of the courts in Alberta in the Judicial Centre ofEdmonton for all disputes arising out of or relating to this Agreement.
The Following terms and conditions apply to the Terms ofSale, the Terms of Use, the Customer Contract and the EULA.
GENERAL TERMS
The following general terms apply to those Sections of thisAgreement referenced above.
1. The failure of Whistle to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder.
2. Whistle shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Whistle’s reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation (including “line-noise”interference).
3. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain and continue in full force and effect and enforceable.
4. This Agreement is not assignable, transferable, or sub-licensable by you except with Whistle’s prior written consent. Whistle may transfer, assign, or delegate this Agreement and its rights and obligations without your consent.
5. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties with respect to the Website, the Services, the Content, and any other subject matter referenced in the sections of the Agreement to which this applies, and supersedes and cancels all previous written and oral agreements, communications and other understandings relating thereto.
6. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and you do not have any authority of any kind to bind Whistle in any respect whatsoever.
7. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning.
8. Except as expressly set forth in this Agreement, you and Whistle agree there are no third party beneficiaries intended under this Agreement except our parents, affiliates, subsidiaries, agents, assigns, and predecessors and successors in interest.
9. Those sections of this Agreement that by their context are intended to survive (including, without limitation any provisions related to ownership, warranties, warranty disclaimers, limitations on liability, dispute resolution, and arbitration provisions) shall so survive as well as any section or provisions specifically stated in any part of thisAgreement.
10. UNLESS OTHERWISE PROHIBITED BY LAW, WE RESERVE THE RIGHT TO ADD TO, UPDATE, OR AMEND THE TERMS AND CONDITIONS OF THIS AGREEMENT AT ANY TIME. Whistle may modify thisAgreement at any time by posting a notice on the Website or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Product(s), theWebsite or the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified. Please CustomerExperience Center if you have any questions about these changes and how they apply to your use of the Product(s)Privacy P, the Services or the Website.
Product Terms of Sale
Updated: January 17, 2020
Effective Date: January 17, 2020
This Terms of Sale (the“Terms of Sale”) shall apply only to the Product itself and not to theServices. User understands and agrees that references in this Terms of Sale to the Product means and includes all parts and components of the Product(including, without limitation, the Software (as defined below) and any documentation provided by Whistle in connection with the Product).
The Product and Services rely on Google Maps for certain pet location services. Your use of the Products andServices shall bind you to the Google Maps/Google Earth Additional Terms ofService available at https://maps.google.com/help/terms_maps.html, which includes, without limitation, the GooglePrivacy Policy, which is available at https://policies.google.com/privacy?hl=en&gl=us.
THIS TERMS OF SALE IS SUBJECT TO THE ARBITRATION AGREEMENT SET FORTH IN THE AGREEMENT ABOVE. The arbitration provision requires you to arbitrate any claims you may have against Whistle on an individual basis.ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE,THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, IF ANY, AND THAT YOU MAYNOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
Product Use
You may only use the Product within the United States orCanada (within the country of purchase, only) and for your own personal, non-commercial use. As a condition to using the Product, You must sign up for an account with Whistle by downloading the Whistle Product Application(the "Application") and, if applicable, pay any fees associated with such account (as further explained in the Terms of Use). User understands and acknowledges that the Product may not function properly if User does not keep his or her Whistle account current and up-to-date and pay any fees due, if applicable. Except as expressly set forth herein, all fees paid hereunder or with respect to the Product are nonrefundable.
Money Back Guarantees
Refund policies vary for specific Products. Please see below for product-specific policies:
· 90-Day Money Back Guarantee (Whistle FIT,Whistle GO, Whistle GO Explore): If at any time within 90 days of purchasingYour Whistle FIT, Whistle GO or Whistle GO Explore You are not completely satisfied, You may return it to Whistle for a refund. Please note the 90-day guarantee applies only to Whistle FIT, Whistle GO and Whistle GO Explore. It does not apply to any other Whistle products. In addition, this guarantee applies only to orders made through Whistle’s webstore at whistle.com and only to fees paid for Your Whistle FIT, Whistle GO and Whistle GO Explore. The guarantee does not apply to funds paid for any Services. However, a pro-rated refund will be issued for any unused months remaining in the Services subscription period which were pre-paid for under a 1-year or 2-year plan. To request a refund for Your Whistle FIT, Whistle GO or Whistle GO Explore, simply contact Whistle Support within 90 days of the date of Your purchase to request a full refund. Whistle Support will provide You with an RMA for your return.Make sure to indicate You are requesting to return a Whistle FIT, Whistle GO orWhistle GO Explore. After receiving Your RMA, package Your Whistle GO orWhistle GO Explore and send it to Whistle’s warehouse, following the instructions provided. About 2 weeks after Whistle receives Your Whistle FIT,Whistle GO or Whistle GO Explore, Whistle will process a refund using Your original method of payment.
Please note that to qualify for a refund, all of the following conditions must be met:
· Returned product must have been purchased fromWhistle.com.
· Returned Product must be packed in its original packaging including all accessories that shipped with the Product, and ReturnedProduct must be undamaged and in good working condition.
· A RMA must be requested from Whistle’s customer service team within 30 days (for Whistle GPS or Whistle Activity Monitor) or 90days (Whistle FIT, Whistle GO and Whistle GO Explore) of Your purchase date and the Product must be received by Whistle within 14 days after issuance of theRMA.
· Shipping and handling charges and taxes paid(e.g., state, customs, VAT) are not refundable.
· You are responsible for shipping charges and shall assume all risk of loss or damage to the Product while in transit toWhistle. Whistle recommends that You use a tracking service for Your protection.
Please do not send Whistle the Product before requesting a return, as this may delay You getting Your refund. Make sure You ship theProduct to Whistle immediately, as Whistle must receive it within 14 days of the return authorization date to process the refund. Associated shipping fees are not eligible for a refund under Whistle’s Money-Back Guarantee policies. If the Product is damaged due to reasons that are not covered by Whistle’s warranty, it is not eligible for a refund.
License
By using the Product, User acknowledges the existence and validity of, and agrees to be bound by, the EULA set forth in this Agreement below for the software embedded onUser’s Product ("Software").
Support
User can call Whistle’s Customer Experience Center at the contact information listed above for Support.
Use Restrictions
User shall not: (a) distribute, market, resell, transfer, or allow any other individual to use the Product; (b) use the Product in connection with any products or services not supplied or provided by Whistle or otherwise approved by Whistle-supplied documentation; (c) remove any proprietary notices, labels, or marks on or in the Product; or (d) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Product (including without limitation the Software), except to the limited extent applicable laws specifically prohibit such restriction.
Third Party Products or Services
While User may choose to use the Product in connection with a product or service provided by a third party, Whistle is not responsible for and does not endorse any third-party product or service. ANY USE OF THIRD PARTY PRODUCTS OR SERVICES IN CONNECTION WITH YOUR PRODUCT IS SOLELY AT YOUR OWN RISK AND MAY VOID THE LIMITED PRODUCT WARRANTY.
Limited Warranty; Disclaimer of other Warranties
The Product is subject to Whistle’s Limited Product Warranty set forth below. Except to the extent expressly set forth in the LimitedProduct Warranty, Whistle does not make any warranties, express or implied, with respect to the Product, including, without limitation, warranties of merchantability, fitness for a particular purpose, title, and non-infringement, all of which are hereby expressly disclaimed.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WHISTLE, ITS MANUFACTURERS, SUPPLIERS, SERVICE PROVIDERS,LICENSORS, PARTNERS, RESELLERS, OR ANY OF THEIR AFFILIATES, SUCCESSORS, OR PERMITTED ASSIGNS, OR ANY OF THEIR OR THEIR AFFILIATES’ RESPECTIVE OWNERS,DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE WITH RESPECT TO THE PRODUCT, SOFTWARE, SERVICES OR THE OTHER MATTERS TO WHICH THIS AGREEMENT RELATES UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR:
1. ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE PRICE PAID BY USER FOR THE PRODUCT;
2. ANY DIRECT, INDIRECT, INCIDENTAL, GENERAL,SPECIAL, PUNITIVE, AGGRAVATED, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER(INCLUDING, WITHOUT LIMITATION, FOR LOST DATA, LOST PROFITS, LOST CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY,FAILURE TO MEET ANY DUTY, INCLUDING, WITHOUT LIMITATION, THE DUTIES OF GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), EVEN IF SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
3. DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR
4. USER’S RELIANCE ON THE PRODUCT OR ANY MATTER BEYOND WHISTLE’S REASONABLE CONTROL.
THE LIMITATIONS IN THIS SECTION SHALL APPLY EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. NOTE THAT THE LIMITATIONS INTHIS “LIMITATION OF LIABILITY” SECTION ARE NOT APPLICABLE TO NEW JERSEY RESIDENTS.
Export
Notwithstanding anything stated herein or otherwise, User may not provide to any person or export or re-export or allow the export or re-export of the Product, Services, or any Software or anything related thereto or any direct product thereof (collectively "Controlled SubjectMatter"), in violation of any restrictions, laws or regulations of theUnited States Department of Commerce, the United States Department of TreasuryOffice of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing, User acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to orby a national or resident thereof, or any person or entity on the U.S.Department of Treasury’s List of Specially Designated Nationals or the U.S.Department of Commerce’s Table of Denial Orders (collectively, "DesignatedNationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Product constitutes are presentation and warranty that the User is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export AdministrationRegulations.
For Products purchased outside of the United States, theProduct may be subject to customs and export control laws and regulations. You agree to comply with all applicable international and federal laws and regulations.
Terms of Use
Updated: November 4, 2019
Effective Date: November 11, 2019
PLEASE READ THESE TERMS OF USE (THIS " TERMS OF USE ") CAREFULLY BEFORE VISITING THE WEBSITE (DEFINED BELOW) OR USING THE SERVICES (DEFINED ABOVE) OFFERED BY KINSHIP PARTNERS, INC. BY VISITING THE WEBSITE OR USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BYAND A PARTY TO THE TERMS AND CONDITIONS OF THIS TERMS OF USE. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS TERMS OF USE, YOU HAVE NO RIGHT TO AND SHOULD NOT USE THE WEBSITE OR SERVICES.
THIS TERMS OF USE IS SUBJECT TO THE ARBITRATION AGREEMENT SET FORTH IN THE AGREEMENT ABOVE. The arbitration provision requires you to arbitrate any claims you may have againstWhistle on an individual basis. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, IF ANY, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
Access To The Services.The www.whistle.com website and domain name, and any other linked pages, features, content, or application services (including, without limitation, any mobile application services) offered from time to time by Whistle in connection therewith (collectively, the "Website"), are owned and operated by Whistle. Subject to the terms and conditions of this Terms of Use,Whistle may offer to provide certain Services, as described more fully on theWebsite, that have been selected by you , solely for your own use, and not for the use or benefit of any third party. The term "Services" includes, without limitation, use of the Website, any service Whistle performs for you, and the Content (defined below) offered by Whistle on the Website, but does not include cellular-based pet location services that are governed by the WhistleCustomer Contract set forth below. Whistle may change, suspend, or discontinue the Website or any Services at any time, including the availability of any feature, database, or Content. Whistle may also impose limits on certain features and services or restrict your access to parts or all of the Website or theServices without notice or liability to you. You may choose to use the Website or the Services in connection with one or more Whistle-branded Product(s). You may use the Website or the Services in connection with the Product only after you have purchased theProduct and read and accepted the Terms of Sale above.
Whistle does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to use the Website or register for the Services. If you are under 13, please do not attempt to use the Website or register for the Services or send any information about yourself to us, including your name, address, telephone number, or email address. No one under age 13 may provide any personal information to Whistle or on the Website or the Services. In the event that we learn that we have collected personal information from a child under age 13without verification of parental consent, we will delete that information as quickly as commercially possible. If you believe that we might have any information from or about a child under the age of 13, please contact us atsupport@whistle.com. You represent and warrant to Whistle that: (i) you are an individual(i.e., not a corporation or other legal entity) and you are of legal age to form a binding contract or have your parent’s permission to do so, and you are at least 13 years or age or older; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. You also certify that you are legally permitted to use and access the Website and the Services and take full responsibility for the selection and use of and access to the Website and the Services. This Terms of Use is void where prohibited by law, and the right to access the Website and the Services is revoked in such jurisdictions.
Website And ServicesContent. The Website, the Services, and their contents are intended solely for your personal, non-commercial use and may only be used in accordance with the terms of this Terms of Use. All materials displayed or performed on theWebsite or the Services (including, without limitation, text, graphics, articles, photographs, images, and illustrations (also known as the "Content," and which further includes User Submissions (defined below))) are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through theWebsite or the Services, and you shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i)without the express prior written consent of the respective owners, and (ii) in any way that violates any Whistle or third party right. The Website and theServices are protected by copyright as collective works and/or compilations, pursuant to U.S. copyright laws, Canadian copyright laws, international conventions, and other copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this section), create derivative works based on, distribute, perform, display, or in any way exploit any of the Content, software, materials, Website, or Services in whole or in part. You may download or copy the Content(and other items displayed on the Website or Services for download) for personal, non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content is expressly prohibited without prior written permission from Whistle or from the third party copyright holder identified in such Content’s copyright notice. If you link to the Website, Whistle may revoke your right to so link at any time, at Whistle’s sole discretion. Whistle reserves the right to require prior written consent before linking to the Website.
In the course of using the Website or the Services, you and other users may provide information that may be used by Whistle in connection with the Website or the Services and that may be visible to certain other users. You understand that by posting information or content on the Website or otherwise providing content, materials, or information to Whistle or in connection with the Website or the Services, including, without limitation, information you have made available automatically through your use of theProduct (collectively, "User Submissions"), Whistle hereby is and shall be granted a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable, and transferable right to fully exploit such User Submissions (including all related intellectual property rights) in connection with the Services, the Website, and Whistle’s (and its successors’ and assigns’) business, including, without limitation, for promoting and redistributing part or all of the Website or the Services (and derivative works thereof) in any media formats and through any media channels; however, You also hereby do and shall grant each user of the Website or the Services anon-exclusive license to access your User Submissions through the Website or the Services, and to use, modify, reproduce, distribute, prepare derivative works of, display, and perform such User Submissions as permitted through the functionality of the Website or the Services and under this Terms of Use.Furthermore, you understand that Whistle retains the right to reformat, modify, create derivative works of, excerpt, and translate any User Submissions submitted by you. For clarity, the foregoing license granted to Whistle doe snot affect your ownership of or right to grant additional licenses to the material in your User Submissions, unless otherwise agreed in writing. You understand that all information publicly posted or privately transmitted through the Website or the Services is the sole responsibility of the person from which such content originated and that Whistle will not be liable for any errors or omissions in any such Content. You understand that Whistle cannot guarantee the identity of any other users with whom you may interact in the course of using the Website or the Services. Additionally, Whistle cannot guarantee the authenticity of any data that users or merchants may provide about themselves.You acknowledge that all Content accessed by you in connection with using theWebsite or the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. Under no circumstance swill Whistle be liable in any way for any Content, including, without limitation, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Website or the Services.
Restrictions. You warrant, represent, and agree that you will not contribute any User Submissions or otherwise use the Website or the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance, by-law, or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities or sales without Whistle’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including, without limitation, any employee or representative of Whistle; or(vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. Whistle reserves the right to remove any Content orUser Submissions from the Website or the Services at any time, for any reason(including, without limitation, upon receipt of claims or allegations from third parties or authorities relating to such Content or User Submissions or ifWhistle is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Whistle, remain solely responsible for all User Submissions that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Website or the Services, and you warrant that you possess all rights necessary to provide such User Submissions to Whistle and to grant Whistle the rights to use such in connection with the Website or the Services and as otherwise provided herein. You are responsible for all of your activity in connection with the Website or the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Website or the Services. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the Website or the Services. Use of theWebsite or the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material(including, without limitation, material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited.You will not run Mail list, Listserv, any form of auto-responder, or “spam” on the Website or the Services, or any processes that run or are activated while you are not logged on to the Website or the Services, or that otherwise interfere with the proper working of or place an unreasonable load on theWebsite’s or the Services’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or“spider” any page of the Website is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Website or the Services. You will be responsible for withholding, filing, nd reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Website or the Services.
Warranty Disclaimer.Whistle has no special relationship with or fiduciary duty to you. You acknowledge that Whistle has no control over and no duty to take any action regarding: which users gain access to the Website or the Services; what Content you access via the Website or the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Whistle from all liability for you having acquired or not acquired Content through the Website or the Services. The Website or the Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Whistle makes no representations concerning any content(including the Content) contained in or accessed through Website or theServices, and Whistle will not be responsible or liable for the accuracy, completeness, copyright compliance, legality, or decency of material contained in or accessed through the Website or the Services. Whistle makes no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Website or the Services.Products and services purchased (whether or not following such recommendations and suggestions) are provided “AS IS” without any warranty of any kind fromWhistle or others unless, with respect to others only, otherwise made expressly and unambiguously in writing by Whistle or a designated third party for a specific product or service. THE SERVICES, CONTENT, WEBSITE, AND ANY SOFTWARE PROVIDED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS,SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING THE ABOVE,PRODUCTS MANUFACTURED AND SOLD BY WHISTLE MAY, IF APPLICABLE, BE COVERED BY WHISTLE’S LIMITED PRODUCT WARRANTY, A COPY OF WHICH CAN BE ACCESSED HERE.
Registration AndSecurity. As a condition to using some aspects of the Website or theServices, you may be required to register with Whistle and select a password and user name ("Whistle User ID"). You shall provide Whistle with accurate, complete, and updated registration information. Failure to do sos hall constitute a breach of this Terms of Use, which may result in immediate termination of your account. You may not (i) select or use as a Whistle User ID a name of another person with the intent to impersonate that person; or (ii)use as a Whistle User ID a name subject to any rights of a person other than you without appropriate authorization. Whistle reserves the right to refuse registration of or cancel a Whistle User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password. If you access the Website or the Services through a third party site or service, you will provide your third party account credentials to Whistle, and you are consenting to have the information in those accounts transmitted into your Whistle account, and you agree that you shall only use accounts owned by you, and notby any other person or entity.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WHISTLE, ITS MANUFACTURERS, SUPPLIERS, SERVICE PROVIDERS, LICENSORS, PARTNERS, RESELLERS, OR ANY OF THEIR AFFILIATES, SUCCESSORS, OR PERMITTED ASSIGNS, OR ANY OF THEIR OR THEIR AFFILIATES’ RESPECTIVE OWNERS, DIRECTORS,OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE WITH RESPECT TO THE WEBSITE, THE SERVICES, THE CONTENT, OR THE OTHER MATTERS TO WHICH THIS AGREEMENT RELATES UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR:
1. ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF $100 OR THE FEES YOU PAID FOR THE SERVICES AND ANY PRODUCTS OR SERVICES PURCHASED THROUGH THE SERVICES DURING THE 12-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, WHICH AMOUNT SHALL BE SUCH PERSONS’ ENTIRE LIABILITY ANDY OUR EXCLUSIVE REMEDY (EXCEPT, WITH RESPECT TO THE PRODUCT, ANY REMEDY OF REPAIR OR REPLACEMENT, AS ELECTED BY WHISTLE, WITH RESPECT TO ANY CLAIM UNDER WHISTLE’S LIMITED PRODUCT WARRANTY);
2. ANY DIRECT, INDIRECT, INCIDENTAL, GENERAL,SPECIAL, PUNITIVE, AGGRAVATED, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER(INCLUDING, WITHOUT LIMITATION, FOR LOST DATA, LOST PROFITS, LOST CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY,FAILURE TO MEET ANY DUTY, INCLUDING, WITHOUT LIMITATION, THE DUTIES OF GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), EVEN IF SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
3. DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR
4. ANY MATTER BEYOND WHISTLE’S REASONABLE CONTROL.
THE LIMITATIONS IN THIS SECTION SHALL APPLY EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. NOTE THAT THE LIMITATIONS INTHIS “LIMITATION OF LIABILITY” SECTION ARE NOT APPLICABLE TO NEW JERSEY RESIDENTS.
Fees And Payment.Although some of our Services are currently free to users, Whistle reserves the right to require payment of fees for certain or all Services. You shall pay all applicable fees as described on the Website in connection with such Services selected by you. Whistle reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Website. Your use of the Services following such notification constitutes your acceptance of any new or increased charges. Any fees paid hereunder are non-refundable.
Third Party Websites.The Website or the Services may contain links to third party websites or services ("Third Party Websites") that are not owned or controlled by Whistle, or the Website or the Services may be accessible by logging in through a Third Party Website, as described more fully in our PrivacyPolicy. When you access Third Party Websites, you do so at your own risk. You hereby represent and warrant that you have read and agree to be bound by all applicable policies of any Third Party Websites relating to your use of the Website or the Services and that you will act in accordance with those policies, in addition to your obligations under this Terms of Use. Whistle has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of, or the opinions expressed in, any ThirdParty Websites. In addition, Whistle will not and cannot monitor, verify, censor, or edit the content of any Third Party Website. By using the Website or the Services, you expressly relieve and hold harmless Whistle from any and all liability arising from your use of any Third Party Website. Your interactions with organizations or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organizations or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree thatWhistle shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between users of this Website or the Services or any Third Party Website, or between users and any third party, you understand and agree that Whistle is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release Whistle, its affiliates, officers, directors, employees, agents, and successors in rights from claims, demands, and damages (actual, incidental, and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the credit ordoes not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
The Product and Services rely on Google Maps for certain pet location services. Your use of the Products and Services shall bind you to theGoogle Maps/Google Earth Additional Terms of Service available at https://maps.google.com/help/terms_maps.html,which includes, without limitation, the Google Privacy Policy, which is available at https://policies.google.com/privacy?hl=en&gl=us.
Termination. ThisTerms of Use shall remain in full force and effect while you use the Website or the Services. You may terminate your use of the Services at any time. Whistle may terminate or suspend your access to the Website or the Services or your user account at any time, for any reason, without liability and without prior warning, including, without limitation, as a result of your breach of your obligations under this Terms of Use or any other agreements that apply to theProduct or to any particular service provided by Whistle and selected by you.Upon termination of your account, your right to access and use the Website and the Services, including, without limitation, any User Submissions, will immediately cease. Termination may result in the forfeiture and destruction of all information associated with your account, including any User Submissions.
Third PartyBeneficiaries. Except as expressly set forth in the Apple Device and ApplicationTerms section below, you and Whistle agree there are no third party beneficiaries intended under this Terms of Use.
Copyright DisputePolicy. Whistle has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA(posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address ofWhistle’s Designated Agent to Receive Notification of Claimed Infringement ("DesignatedAgent") is listed at the end of this Section. It is Whistle’s policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any ofour advertisers, affiliates, content providers, members, or users; and (2) remove and discontinue service to repeat offenders.
A. Procedure for Reporting CopyrightInfringements: If you believe that material or content residing on or accessible through the Website or the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
· A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
· Identification of works or materials being infringed;
· Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Whistle is capable of finding and verifying its existence;
· Contact information about the notifier including address, telephone number and, if available, email address;
· A statement that the notifier has a good faith belief that the material identified is not authorized by the copyright owner, its agent, or the law; and
· A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B. OnceProper Bona Fide Infringement Notification is Received by the Designated Agent: Itis Whistle’s policy:
· to remove or disable access to the infringing material;
· to notify the content provider, member, or user that it has removed or disabled access to the material; and
· that repeat offenders will have the infringing material removed from the system and that Whistle will terminate such content provider’s, member’s, or user’s access to the Website or the Services.
C. Procedure to Supply a Counter-Notice to theDesignated Agent: If the content provider, member, or user believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider, member, or user believes that it has the right to post and use such material pursuant to law or permission from the copyright owner or the copyright owner’s agent, then the content provider, member, or user must send a counter-notice containing the following informationto the Designated Agent listed below:
· A physical or electronic signature of the content provider, member, or user;
· Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
· A statement that the content provider, member, or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
· Content provider’s, member’s, or user’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s, or user’s address is located, or, if the content provider’s, member’s, or user’s address is located outside the United States, for any judicial district in whichWhistle is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If the Designated Agent receives a counter-notice, Whistle may send a copy of the counter-notice to the original complaining party informing that person that Whistle may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Whistle’s discretion.
Please contact Whistle’s Designated Agent to ReceiveNotification of Claimed Infringement at the following address: Kevin Lloyd, c/o Kinship Partners, Inc., 1355 Market Street, Suite 210, San Francisco, CA, 94103
Apple Device AndApplication Terms. If you are using the Website or the Services in connection with a device provided by Apple, Inc. ("Apple") or a Whistle application obtained through the Apple App Store (collectively, the "Application"),the following shall apply:
· Both you and Whistle acknowledge that this Terms of Use is concluded between you and Whistle only, and not with Apple, and thatApple is not responsible for the Application or the Content;
· The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of this Terms of Use as they are applicable to the Services;
· You will only use the Application in connection with an Apple device that you own or control;
· You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
· In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of theApplication;
· You acknowledge and agree that Whistle, and notApple, is responsible for addressing any claims you or any third party may have in relation to the Application;
· You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of theApplication infringes that third party’s intellectual property rights, as between Whistle and Apple, Whistle, and not Apple, will be responsible for the investigation, defense, settlement, and discharge of any such infringement claim;
· You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
· Both you and Whistle acknowledge and agree that,in your use of the Application, you will comply with any applicable third party terms of agreement that may affect or be affected by such use; and
· Both you and Whistle acknowledge and agree thatApple and Apple’s subsidiaries are third party beneficiaries of this Terms ofUse, and that upon your acceptance of this Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce this Terms ofUse against you as the third party beneficiary hereof.
Customer Contract
Updated: November 4, 2019
Effective Date: November 11, 2019
Thank you for choosing a Whistle-branded Product(s) and Whistle’s pet locationServices. This Customer Contract (this "Customer Contract")applies to your paid, trial, promotional, and other subscriptions to theServices for your use in connection with the Product. By using the Product and the Services, you are accepting this Customer Contract and you are bound by its terms and conditions. This Customer Contract applies to all of the Products andServices provided to you by Kinship Partners, Inc. ("Whistle," "We" or "Us").
THIS CUSTOMER CONTRACT IS SUBJECT TO THE ARBITRATION AGREEMENT SET FORTH IN THE AGREEMENT ABOVE. The arbitration provision set forth below requires you to arbitrate any claims you may have against Whistle on an individual basis. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE ORJURY TO DECIDE YOUR CLAIMS, IF ANY, AND THAT YOU MAY NOT PROCEED IN A CLASS,CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
Acceptance of this Customer Contract
THIS CUSTOMER CONTRACT STARTS WHEN YOU ACCEPT. You accept when you do either of the following things:
· Give Whistle a written or electronic signature; or
· Use the Product or Services, including such use after changes or additions to your subscription have been made and we have notified you that the change or addition requires your acceptance.
IF YOU DO NOT WANT TO ACCEPT, DO NOT DO EITHER OF THESE THINGS. You can cancel, change, or transfer your subscription only as allowed in this Customer Contract.
The Services
How the Services Work:Because this is a wireless service, the quality of your signal and your ability to access the Services may be affected by your location. Whistle cannot provide the Services when your Product isn't in range of a transmission site used to provide the Services. You must be within Whistle's coverage area to use theServices and to perform certain functions from your Product, such as initial activation of the Services, deactivation, and service changes (to name a few).Even within Whistle's coverage area, there are many factors, including but not limited to network capacity, limitations and restrictions of wireless carrier service providers, your Product type, terrain, your proximity to buildings and foliage, and weather (to name a few) that may impact the availability and quality of the Services. You acknowledge and accept these limitations of theServices. The Services provide an approximate location of the requested Product and do not provide guaranteed results. The results you obtain from theServices, including but not limited to directions, maps, and requested locations or messaging, may not be accurate, timely, or reliable. Whistle reserves the right to set limits on the use of the Services at its discretion.Whistle does not guarantee that any lost animal will be found and Whistle does not provide any service for the purpose of searching and/or recovering your animal. THE PRODUCT AND SERVICES ARE ONLY INTENDED FOR TRACKING PETS. DO NOTUSE FOR TRACKING CHILDREN, OTHER HUMANS, OR OBJECTS. USING THE PRODUCT IN A MANNER OTHER THAN SPECIFIED IN THE USER MANUAL MAY CAUSE INJURY.
Interrupted Service: The Services may be interrupted or restricted without notice to you. Whistle is not required to give any refunds or credits if the Services are interrupted or if your ability to use the Services is limited based on Whistle's network coverage and availability. Please visit https://www.whistle.com/support or contact our Customer Experience Center by calling 855-999-0471 if you have any questions regarding interruption of the Services.
Your Account: You must establish an account to use the Services and activate your Product(s). You are responsible for maintaining the confidentiality of your account password. You are also responsible for all activities that occur in connection with your account. You agree to notify us immediately of any unauthorized use of your account. In creating an account, you may not impersonate someone else, create an account f or anyone other than yourself, provide an email address other than your own, or create multiple accounts. The Product and Services are not directed at children under the age of 13. The Services are available for individuals aged13 years or older. If you are 13 or older but under the age of 18, you should review these terms and conditions with your parent or guardian to make sure that you and your parent or guardian understand these terms and conditions. If you are ordering for an organization, you are representing that you are authorized to bind it, and where the context requires, "you" means the organization.
SMS Charges: The Services may allow you to send and receive text messages (SMS) on your mobile device. The number of messages per month will depend upon your settings. You grant Whistle authorization to send account-related and other informational SMS to your account. Message and data rates may apply and you will be responsible for paying such charges. Check with your carrier if you have questions about your plan and costs. To stop receiving text messages from or in connection with the Services, update your notification settings in your mobile app.
Authorization to Contact You By Phone. You authorize us and our affiliates, agents, and independent contractors to contact you at any telephone number you provide to us or from which you place a call to us or any telephone number where we believe we may reach you using any means of communication, including, but not limited to, calls or text messages to mobile, cellular, wireless, or similar devices and calls or text messages using an automated telephone dialing system and/or artificial voices or prerecorded messages, even if you incur charges for receiving such communications.
Authorization to Contact You By Other Means. You also agree that we and our affiliates, agents, and independent contractors may use any other medium, as permitted by law and including, but not limited to, mail, text message, and e‐mail, to contact you.
Your Right to Make Changes. If you want to make a change in how we contact you, including with respect to any telephone number that we might use, please contact our Customer Experience Center at the number listed above.
Authorization to Record Calls. You agree that we and our affiliates, agents, and independent contractors may listen to or record telephone calls between you and our representatives without additional notice to you.
Terms of the Customer Contract and Your Service Plan
Changes to Terms of the Customer Contract: TheServices are subject to our business policies, practices, and procedures, which we can change without giving notice to you subject to the terms of theAgreement. ..
Service Plans: When you accept this CustomerContract, you will be purchasing a subscription package that generally sets out your subscription information and service allowances and features, including, without limitation, the term, duration, billing information, payment due dates, price, costs, fees, taxes, and recurring charges associated with those allowances and features. WE WILL REFER TO YOUR SUBSCRIPTION PACKAGE AND RELATED TERMS ASYOUR "PLAN". YOUR PLAN WILL BECOME PART OF THIS CONTRACT.If a term or condition of your Plan expressly conflicts with this CustomerContract, the term or condition in your Plan will govern. If at any time you change your service (for example, by accepting a promotional opportunity offered by Whistle or subscribing to a new service offering), you will be subject to the requirements, such as a new minimum term, associated with that change. Cancellation of your subscription before the expiration of the applicable term may result in a termination fee as detailed in this CustomerContract and/or your Plan. Any service‐included offer cannot be combined with any other offers and Whistle reserves the right to cancel or modify the offer(s) at any time.
Your Rights to Change or End Your Subscription; AutomaticRenewals: Your account will automatically be charged at the rates in effect at the time of renewal. You have the right to change your subscription package and Plan. How the change will affect your charges will depend on the choices you make. AN EARLY TERMINATION FEE MAY ALSO APPLY IF YOU CHOOSE TO END YOUR SUBSCRIPTION BEFORE YOUR FIRST RENEWAL OR ANY SUBSEQUENT RENEWAL, OR IF WE TERMINATE IT EARLY FOR GOOD CAUSE. Otherwise, and except as otherwise provided in the next sentence, all terminations of Plans based on a monthly, annual, or other billing cycle by you during such cycle become effective on the last day of that billing cycle. You will remain responsible for all fees and charges incurred until then and you will not be entitled to any partial–month credits or refunds. SUBSCRIPTIONS AND FEES FOR ALL PRE‐PAID, MONTHLY, ANNUAL, AND SIMILAR SUBSCRIPTIONS, AND CERTAIN PROMOTIONAL SUBSCRIPTIONS ARE NONREFUNDABLE. IN THE EVENT THAT WE ABANDON OR CEASE DISTRIBUTION OF THE SERVICES, WHETHER AS A RESULT OF LIQUIDATION, BANKRUPTCY, OR OTHERWISE, ALL PREPAID SUBSCRIPTIONS WILLBE TREATED AS NONREFUNDABLE. Except as may be permitted by additional terms, each subscription to the Services is tied to one Product. You may have multipleProducts and multiple subscriptions. If you add additional Products to your account, you must purchase a separate subscription for each one. Because a subscription is tied to a Product, if your Product is lost or stolen, you must cancel or suspend your subscription or you will remain responsible for the payment of the subscription.
Our Rights to Limit or End Your Subscription or thisCustomer Contract: You can only use the Product and Services for personal, noncommercial uses. You agree not to resell or redistribute theServices to someone else without our prior written permission, which we can withhold in our sole discretion. You also agree that your Product and theServices won't be used for any purpose that isn't allowed by your Plan or thisCustomer Contract or for any purpose that's illegal. You agree that you will not install, deploy, or use any regeneration equipment or similar mechanism(for example, a repeater) to originate, amplify, enhance, retransmit, copy, or regenerate a transmitted radio frequency signal(s). WE CAN, WITHOUT NOTICE,LIMIT, SUSPEND, OR END YOUR SUBSCRIPTION OR ANY CONTRACT WITH YOU FOR GOOD CAUSE, including, but not limited to: (i) if you: (a) breach this CustomerContract; (b) make a late payment more than once in any 12 month period or, in the case of pre‐paid subscriptions, if your credit or debit card is declined more than once during any 12 month period; (c) incur charges larger than a required deposit or billing limit (even if we haven't yet billed the charges); (d) provide credit information we can't verify; (e) become insolvent or go bankrupt; (f) lie to us; (g) allow anyone to tamper with your Product; or(ii) if you, any user of your Product or any authorized contact on your account: (a) threaten or commit violence against our representatives; (b) use vulgar and/or inappropriate language toward our representatives; (c) harass our representatives; (d) interfere with our operations; (e) "spam," or engage in other abusive activities; (f) modify your Product from its manufacturer's specifications; (g) use the Product or the Services to violate or infringe upon any rights of any kind of us or any third party, including, but not limited to, copyright, trademark, contract, defamation, right of privacy or publicity, or any other right of any person or entity; or (h) use the Services in a way that adversely affects us, our network, or other customers, partners, representatives, agents, or affiliates. We can also temporarily limit yourServices for any operational or governmental reason. WE CAN CANCEL ANY AND ALL SERVICE OFFERINGS AT ANY TIME AND FOR ANY REASON.
Our Right to Terminate Lines: In addition to our rights to limit or end your Subscription or this Customer Contract, we can terminate the wireless line assigned to your Product if (i) you have not had an active Plan for the Product for 12 months or longer, or (ii) Whistle stops manufacturing, selling, and/or supporting the Product (a "DiscontinuedProduct"). If Whistle intends to terminate the wireless line assigned to aDiscontinued Product, Whistle will use commercially reasonable efforts to provide you with written notice before the date Whistle estimates the wireless line will be terminated. Once the wireless line assigned to a Product has been terminated, the Product can no longer be used to access the Services. WHISTLE WILL HAVE NO LIABILITY OR OBLIGATION TO YOU FOR TERMINATING A WIRELESS LINE INTHE CIRCUMSTANCES DESCRIBED IN THIS PARAGRAPH.
Charges, Fees, and Taxes
Charges and Fees We Set: In return for receiving the Services, you agree to pay all access, usage, and activation/deactivation fees, and other charges we bill you for or that the authorized user of yourProduct accepts. We may charge you one or more of the following fees:
Late Fee: IF WE DON'T RECEIVE PAYMENT IN FULL WHEN DUE, WE MAY, TO THE EXTENT PERMITTED BY THE LAW OF THE STATE OF THE BILLING ADDRESS WE HAVE ON FILE FOR YOU AT THE TIME, CHARGE YOU THE LESSER OF ALATE FEE OF UP TO 1.5 PERCENT A MONTH (18 PERCENT ANNUALLY) AND THE MAXIMUM AMOUNT PERMITTED BY LAW, OR A FLAT $5 A MONTH, WHICHEVER IS LESS, ON UNPAID BALANCES. IF YOUR PLAN INVOLVES BILLING BY A THIRD PARTY, LATE FEES WILL BE SETBY THAT PARTY OR BY ITS TARIFFS, WHICH MAY BE HIGHER THAN OUR LATE FEES. WE MAY ALSO CHARGE YOU FOR ANY COLLECTION AGENCY FEES AND COSTS INCURRED IN COLLECTING FROM YOU AS PERMITTED BY RELEVANT LAW. You acknowledge that any collection fee is not an interest charge, finance charge, or other such charge or payment of a similar nature and it is reasonably related to the actual expense we incur due to unsatisfied payment and may be subject to legal limitations in your state.
Returned Payment Fee: If any bank or other financial institution refuses to honor any payment of yours, we may charge you a fee that is the lesser of (i) $20.00 ($15.00 for residents of West Virginia);and (ii) the maximum amount permitted under applicable law. We do not extend credit to customers and you acknowledge that any fee is not an interest charge, finance charge, or other such charge or payment of a similar nature and is reasonably related to the actual expense we incur due to unsatisfied payment and may be subject to legal limitations in your state, province, or territory.
Early Termination Fee: With certain types ofPlans, there may be an Early Termination Fee equal to the amount of our standard retail equipment price which we may prorate based on when termination occurs, along with administrative or other fees that apply, unless otherwise stated in your Plan. The Early Termination Fee applies only to the extent permitted by law. You will not be charged an Early Termination Fee for any termination during any Renewal Period though there may be administrative or other fees that apply. Promotional offers may have different Early TerminationFees. If you buy your Product or purchase the Services from an authorized agentor third–party vendor, you should check to see if they charge a separate termination fee.
Taxes & Charges We Set: Usage charges, taxes, and other fees may vary depending on where, when, and how you use yourProduct or the Services.
We reserve the right to waive any of these fees, in whole orin part, at our discretion. If we waive any fee or any other provisions of thisCustomer Contract, we will not be deemed to have waived the fee or other contract provision for any other subscription or customer or as to any future occasion.
Taxes, Fees and Surcharges We Don't Set: You are responsible for, and agree to pay, all taxes, fees, and surcharges set by any governmental agency or taxing authority. We may not always give advance notice of changes to these items. Without limitation, in Canada, you are responsible for, and agree to pay, all federal, Goods and Services Tax, provincial or territorial sales tax, or other value added tax.
Billing Statements & Account History, Bill Disputes, and Payments
Billing Details: Your Plan details and cost can be viewed online. Please visit https://www.whistle.com/support or contact our Customer Experience Center at the number listed above if you would like to receive more detailed account history or billing information, if you believe there are any billing errors, or if you have any other questions related to your account history or bill. You must notify our CustomerExperience Center or change your information via your online account immediately in the event of any change in your name, billing address, service address, email address, telephone number, credit or debit card, or other account information.
Bill Disputes: You can dispute your account history or bill by contacting our Customer Experience Center. Unless other wise provided by law, you must still pay any disputed charges until the dispute is resolved.
Payments: All payments must be made in U.S.Dollars. Payment is due in full each payment period. As a condition of yourPlan, you may be obligated to pay in advance by credit card or debit card. All amounts due must be paid by the due date to avoid any late fees and possible deactivation of the Services. We may, at our discretion, accept partial payments, which will be applied to the oldest outstanding charges on your account. If you are late in making any payments to us, we reserve the right to suspend or terminate your access to the Services, deactivate your Product immediately, and report any late payment or non‐payment to credit reporting agencies.
Authorization: By providing a credit card or other payment method accepted by Whistle ("Payment Method") for yourPlan, you are expressly agreeing that we are authorized to keep such PaymentMethod on file and charge you the fees, charges, or other amounts described above. If you want to use a different Payment Method than the one you signed up to use during registration, or if there is a change in your credit card validity or expiration date, you may edit your Payment Method information by logging in to your account and viewing your account details. When you provide aPayment Method to access your Plan, including in connection with a free trial offer, our system will attempt to verify the information you entered. We do this by processing an authorization hold, which is a standard practice. We do not charge you in connection with this authorization hold. If your PaymentMethod expires and you do not edit your Payment Method information or cancel your account, you authorize us to continue billing, and you will remain responsible for any uncollected amounts.
Your Product and Safety
Your Product: Whether you buy your Product fromWhistle or someone else is entirely your choice. Whistle may change the software required for your Product or Services remotely and without notice.This could affect the way you use your Product. We are not responsible for the advertising, statements, practices, promises, or services of manufacturers or sellers of the Products.
Safety: It is your responsibility to exercise discretion and observe all safety measures required by law and common sense. We assume no responsibility for accidents resulting from or associated with the use of the Services or your Product. Additional safety information and product warnings included with your Product should be followed.
Disclaimers/Limitation of Liability
Disclaimer of Warranties: FOR THE PURPOSES OFTHIS SECTION (DISCLAIMERS/LIMITATION OF LIABILITY), WHISTLE AND OUR AFFILIATES,WIRELESS CARRIER, AND OTHER SERVICE PROVIDERS, DISTRIBUTORS, ORIGINAL EQUIPMENT MANUFACTURERS, SUPPLIERS, AND PARTNERS ARE COLLECTIVELY REFERRED TO AS "OUR," "WE" OR "US".EXCEPT AS OTHERWISE PROVIDED IN ANY SEPARATE LIMITED WARRANTY THAT MAY BE APPLICABLE TO YOUR PRODUCT, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF NON‐INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING THE SERVICES OR YOUR PRODUCT. WE CAN'T PROMISE UNINTERRUPTED OR ERROR–FREE SERVICES AND DON'T AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF. THIS DOESN'T DEPRIVE YOU OF ANY WARRANTY RIGHTS YOUMAY HAVE AGAINST ANYONE ELSE. ALL DATA AND INFORMATION IS PROVIDED TO YOU ON AN"AS IS" BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES ON THE ACCURACY, COMPLETENESS, OR TIMELINESS OF ANY LOCATION OR OTHER DATA MADE AVAILABLE TO YOU. YOUR USE OF ANY INFORMATION AVAILABLE THROUGH THE SERVICES ISAT YOUR OWN RISK AND RESPONSIBILITY.
Waivers and Limitations of Liability: UNLESS THELAW FORBIDS IT IN ANY PARTICULAR CASE, THE LIMITATIONS AND WAIVERS IN THIS SECTION WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER STATUTORY,FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, PRODUCT S LIABILITY, OR ANY OTHER THEORY. NEITHER WE NOR YOU WILL SEEK ANY ATTORNEYS FEES, INDIRECT, SPECIAL, TREBLE, CONSEQUENTIAL, OR PUNITIVE DAMAGES FROM THE OTHER. YOU AGREE THAT WE ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY; BY BUILDINGS, ACCIDENTS, HILLS, NETWORK CONGESTION, TUNNELS, TOWERS,WEATHER, OR OTHER THINGS WE DON'T CONTROL; OR BY ANY ACT OF GOD.
YOU AGREE TO HOLD HARMLESS US AND EACH OF OUR OFFICERS,EMPLOYEES, AFFILIATES, AND AGENTS FROM AND AGAINST ANY CLAIMS, IRRESPECTIVE OFTHE NATURE OF THE CAUSE OF THE CLAIMS, (I) ALLEGING LOSS, COSTS, EXPENSES,DAMAGES, OR INJURIES (INCLUDING INJURIES RESULTING IN DEATH); (II) ARISING OUTOF OR IN CONNECTION WITH CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE,PERSONAL INJURY OR DEATH, OR (III) ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS CONTRACT OR THE USE, FAILURE TO USE, OR INABILITY TO USETHE PRODUCT OR THE SERVICES, EXCEPT WHERE THE CLAIMS IN (I)-(III) RESULT FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IF ANOTHER SERVICE PROVIDER IS INVOLVED IN ANY PROBLEM (FOR EXAMPLE, BECAUSE OF ROAMING), YOU ALSO AGREE TO ANY LIMITATIONS OF LIABILITY THAT THE SERVICE PROVIDER ALSO IMPOSES. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVENO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH ANY OF OUR SERVICE PROVIDERS ANDYOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN US AND SUCH SERVICE PROVIDERS. UNLESS YOU HAVE A SEPARATE CONTRACT WITH OUR SERVICE PROVIDERS, SUCH SERVICE PROVIDERS HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU AND YOU WAIVE ANY AND ALL CLAIMS OR DEMANDS FOR SUCH LIABILITY.
OUR MAXIMUM LIABILITY TO YOU UNDER ANY THEORY (INCLUDING BUTNOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY,OR PRODUCTS LIABILITY) IS LIMITED TO AN AMOUNT EQUAL TO THE PORTION OF THE CHARGES TO YOU FOR THE SERVICES RELATING TO THE PERIOD OF SERVICE DURING WHICH SUCH DAMAGES OCCUR. NOTE THAT THE LIMITATIONS IN THIS “LIMITATION OF LIABILITY”SECTION ARE NOT APPLICABLE TO NEW JERSEY RESIDENTS.
Miscellaneous:
Intellectual Property Rights: You may not, and you agree that you shall not, copy, decompile, disassemble, reverse engineer, or manipulate any technology in, or otherwise modify or tamper with, anyProduct or equipment used to receive the Services. Nothing under this CustomerContract or the fact that you have access to and use of the Services gives you any right, title, or interest or license in or to any technology, software, or content, or any intellectual property rights in any of the foregoing, available with the Services. Nothing under this Customer Contract or the fact that you have access to and use of the Services gives you any right, title or interest or license to reproduce or otherwise use our or any third party’s trademarks, service marks, graphics, or logos. You may not, and you agree that you shall not, copy or otherwise tamper with any software or content available with theServices. Except as required by law, you acquire no proprietary interest in any number assigned to a Product for its use.
Notices: EXCEPT FOR NOTICES THAT ARE PERMITTED BY THIS CONTRACT TO BE POSTED ON OUR WEBSITE AT WWW.WHISTLE.COM, NOTICES ARE CONSIDERED DELIVERED WHEN WE SEND THEM BY EMAIL TO ANY EMAIL OR FAX NUMBER YOU'VE PROVIDED TO US, OR 3 DAYS AFTER MAILING TO THE MOST CURRENT BILLING ADDRESS WE HAVE ON FILE FOR YOU. NOTICES ARE CONSIDERED DELIVERED TO US 3 DAYS AFTER MAILING TO OUR CUSTOMER EXPERIENCE CENTER ADDRESS BELOW OR ON YOUR MOST RECENT BILLING STATEMENT OR COPY OF YOUR ACCOUNT HISTORY.
You can't rely on any other documents or statements on those subjects by any sales or service representatives, and you have no other rights with respect to service or this Customer Contract, except as specifically provided by law. Except to the extent we've agreed otherwise, in the provisions on late fees, collection costs and arbitration, or as required by Federal law, thisCustomer Contract and all disputes between us (whether or not based on thisCustomer Contract) are governed by the laws of the state of your residence, without regard to that state’s conflict of laws principles, provided, that, ifyou reside outside of the United States, then the laws of the State ofCalifornia, without reference to its conflicts of laws principles, shall be the governing law.
Contact Information: If you have a question about the Services, subscription, Plan, fees, charges or bill, or if you would like to change or reactivate your Plan, please contact Customer ExperienceCenter by contacting the Whistle Customer Experience Center at the phone number or address above.
Limited Product Warranty
Updated: November 4, 2019
Effective Date: November 11, 2019
Kinship Partners, Inc. ("Whistle") Standard One(1) Year Limited Product Warranty (the "Limited Product Warranty")
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION MAY LAST, SO THE LIMITATIONS OR EXCLUSIONS DESCRIBED BELOW MAY NOT APPLY TO YOU TO THE EXTENT THEY ARE INCONSISTENT WITH YOUR JURISDICTION'S APPLICABLE LAW. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS UNDER STATE, PROVINCE,TERRITORY, FEDERAL, OR OTHER APPLICABLE JURISDICTIONAL LAW.
Whistle's warranty obligations for a Product are limited to the terms set forth below: Whistle warrants to the original purchaser only that your Product shall be free from material defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase ("Warranty Period"). Whether a defect occurs will be determined solely with reference to the Product documentation.If a hardware defect arises and a valid claim is received by Whistle within theWarranty Period, Whistle will, in its sole and exclusive discretion and, to the extent permitted by applicable law, as your sole and exclusive remedy and in full satisfaction of Whistle's liability, either (1) repair (or request that you repair pursuant to the next sentence) the Product at no charge to you, using new parts or reconditioned parts equivalent to new in performance and reliability, (2) exchange the Product with a product that is new or equivalent to new in performance and reliability and is at least functionally equivalent to the original Product, or (3) refund the purchase price of the Product (but not the purchase price of the Whistle service(s) included with the Product),provided that you return the Product to Whistle as provided below. Whistle may request that you replace defective parts with new or refurbished user‐installable parts that Whistle provides in fulfillment of its warranty obligation. A replacement product or part, including a user‐installable part that has been installed in accordance with instructions provided by Whistle, either (a)assumes the remaining Warranty Period of the original Product or (b) is warranted for ninety (90) days from, as applicable, (1) the date of replacement or repair, or (2) in the case of user-installable parts, the date that is ten(10) days after the date that Whistle ships the parts to you, whichever of (a)and (b) provides longer coverage for you. When a product or part is exchanged, any replacement item becomes your property and the replaced item becomesWhistle's property. Parts provided by Whistle in fulfillment of its warranty obligation must be used in the Product for which warranty service is claimed.When a refund is given, Whistle may require that the Product for which the refund is provided is returned to Whistle, at which time it shall becomeWhistle's property. Consumers in some jurisdictions may have legal rights under applicable state, provincial, territorial, federal, or national legislation governing the sale of consumer goods, including, without limitation, national laws implementing EC Directive 99/44. These rights are not affected by the warranties in this Limited Product Warranty.
For Products purchased in the United States, the laws of theState of California, USA, without giving effect to its conflict of laws principles, shall govern this Limited Product Warranty.
For Products purchased in Canada, the laws of the province/territory where the Product was purchased govern all claims, regardless of conflict of law principles. The courts in Alberta in the JudicialCentre of Edmonton shall be the exclusive jurisdiction and venue for all disputes arising out of or relating to this Limited Product Warranty.
No Whistle reseller, agent, partner, affiliate, or employee is authorized to make any modification, extension, or addition to this LimitedProduct Warranty. If any term of this Limited Product Warranty is held to be illegal or unenforceable, a substitute term shall be deemed to have been inserted which is not illegal and best reflects the meaning of the voided term and the legality or enforceability of the remaining terms shall not be affected or impaired.
Exclusion And Limitations
This Limited Product Warranty applies only to Products manufactured by or for Whistle that can be identified by the"Whistle" trademark, trade name, or logo fixed upon or annexed to theProduct.
This Limited Product Warranty only applies to Products purchased in the United States of America or Canada from Whistle or an authorized Whistle reseller and used solely within the United States of America or Canada. Any use of a Product outside of the United States of America orCanada will void this Limited Product Warranty.
This Limited Product Warranty does not (i) apply to anyProduct that you received free of charge from Whistle or any affiliate or partner of Whistle in connection with any promotion, product test, or for any other reason, or (ii) include accessories even if identified by the"Whistle" trademark, trade name or logo. Further the Limited ProductWarranty does not apply to any software, including software embedded in theWhistle product, or non‐Whistle hardware, even if packaged or sold with the Whistle hardware. Manufacturers, suppliers, or third parties other than Whistle may provide their own warranties, but Whistle, to the extent permitted by law and except as otherwise specifically set forth herein, provides its products "AS IS". Software distributed by Whistle with or without the Whistle brand name (including, but not limited to system software) is not covered under this Limited Product Warranty. Refer to the EndUser License Agreement (EULA) at www.whistle.com/legal/end-user-agreement for details of your rights and obligations with respect to the use of such software. Whistle does not warrant that the operation of the Product will be uninterrupted or error‐free. Whistle is not responsible for damage arising from any failure to follow instructions relating to the Product's use. Transferor resale of the Product will automatically terminate warranty coverage with respect to the Product. This Limited Product Warranty is not transferable to any third party, including but not limited to any subsequent purchaser, owner or user of the Product. This Limited Product Warranty does not apply: (a) if damage or defects are caused by customer or other third party abuse, accident, neglect, improper handling, utilization, or installation, or by failing to operate the Product in compliance with the user manual, quick start guide, or other user guides or product documentation; (b) to consumable parts, such as batteries, unless damage has occurred due to a defect in materials and workmanship by Whistle; (c) if damage or defects are caused by the battery being tampered with to cause a short‐circuit, or if the seals of the battery enclosure or the cells are broken or show evidence of tampering; (d) if damage or defects are caused by a defective function of the wireless network or if the Product software needs to be upgraded due to changes in wireless network parameters; (e) to cosmetic damage, including but not limited to scratches, dents, broken plastic on parts, or any physical damage to the surface of theProduct; (f) if damage or defects are caused by rough handling, physical moisture damage, or extreme thermal or environmental conditions or a rapid change in such conditions, corrosion, oxidation, unauthorized modifications or connections, unauthorized opening or repair, repair by use of unauthorized spare parts, accidents, forces of nature, or other actions beyond the reasonable control of Whistle; (g) in the case of the charging base station and other components other than the tracking device, if damage or defects are caused by exposure to moisture or dampness; and, in the case of the tracking device, if damage or defects are caused by submersion in water beyond one meter for longer than thirty minutes; (h) if damage or defects are caused by theProduct being used with or connected to an accessory not approved or certified by Whistle; (i) if damage or defects are caused by accident, abuse, misuse, flood, fire, earthquake, or other external causes beyond the reasonable control of Whistle; (j) if damage or defects are caused by operating the Product outside of the permitted or intended uses described by Whistle; (k) if damage or defects are caused by service (including upgrades and expansions) performed by anyone who is not a representative of Whistle or a Whistle authorized retailer or service provider; (l) if the Product or a part of the Product has been modified to alter functionality or capability without the written permission of Whistle; (m) if any serial number has been removed or defaced,(n) to a recalled product, part, or component, if a replacement product, part or component was made available by Whistle, or (o) to commercial use of theProduct.
Important: Do not open the Product itself.Opening the Product may cause damage that is not covered by this LimitedProduct Warranty. Only Whistle or a Whistle authorized service provider should perform service on the Product (other than DIY Service as described below).
Disclaimer Of All Other Warranties
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) THE WARRANTIES AND REMEDIES SET FORTH IN THIS LIMITED PRODUCT WARRANTY ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES FOR THE PRODUCT AND ARE IN LIEU OF ALL OTHER WARRANTIES, REMEDIES, AND CONDITIONS, WHETHER ORAL OR WRITTEN, STATUTORY,EXPRESS OR IMPLIED, AND (II) NO STATUTORY OR IMPLIED WARRANTIES OF ANY KIND ARE MADE, AND EACH IS HEREBY EXPRESSLY EXCLUDED, INCLUDING, WITHOUT LIMITATION,WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON‐INFRINGEMENT.TO THE EXTENT STATUTORY OR IMPLIED WARRANTIES CANNOT LAWFULLY BE EXCLUDED, SUCH WARRANTIES SHALL BE LIMITED TO THE DURATION OF AND OTHERWISE BE SUBJECT TO THIS LIMITED PRODUCT WARRANTY.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NONE OF WHISTLE OR ITS MANUFACTURERS, SUPPLIERS, SERVICE PROVIDERS, LICENSORS OR THE IRRESPECTIVE AFFILIATES SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,PUNITIVE, OR CONSEQUENTIAL DAMAGES FOR ANY REASON AND HOWEVER ARISING,INCLUDING, WITHOUT LIMITATION, FOR LOSS OF USE, REVENUE, OR ACTUAL OR ANTICIPATED PROFITS, OR FOR LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA.
WHISTLE'S LIABILITY IS AND SHALL BE LIMITED TO ITS OBLIGATIONS OF REPAIR, REPLACEMENT, OR REFUND AS SET FORTH IN THIS LIMITED PRODUCT WARRANTY, AND YOU HEREBY RELEASE WHISTLE AND ITS MANUFACTURERS,SUPPLIERS, SERVICE PROVIDERS, LICENSORS, AND THEIR RESPECTIVE AFFILIATES FROM ANY AND ALL OTHER OBLIGATIONS, LIABILITIES, AND CLAIMS. FURTHER, NONE OF WHISTLE OR ITS MANUFACTURERS, SUPPLIERS, SERVICE PROVIDERS, LICENSORS OR THE IRRESPECTIVE AFFILIATES IS LIABLE FOR ANY COSTS OR DAMAGES ARISING FROM OR RELATED TO (I) YOUR BREACH OF ANY OTHER CONTRACT APPLICABLE TO THE PRODUCT ORANY SERVICES PROVIDED TO YOU BY OR ON BEHALF OF WHISTLE, OR (II) ANY ACCIDENT,INJURY, DEATH, LOSS, OR OTHER CLAIM RELATED TO OR RESULTING FROM THE USE OF Am WHISTLE PRODUCT OTHER THAN THE USE FOR WHICH IT IS INTENDED.
WHISTLE DISCLAIMS ANY REPRESENTATION THAT IT WILL BE ABLE TO REPAIR ANY PRODUCT UNDER THIS LIMITED PRODUCT WARRANTY OR THAT IT WILL BE ABLETO MAKE A PRODUCT EXCHANGE WITHOUT RISK TO OR LOSS OF PROGRAMS OR DATA.
NOTE THAT THE LIMITATIONS IN THIS "LIMITATION OF LIABILITY" SECTION ARE NOT APPLICABLE TO NEW JERSEY RESIDENTS.
Obtaining Warranty Service
Please access and review the online help resources located at www.whistle.com/support before seeking warranty service. If the product is still not functioning properly after making use of these resources, access the online website www.whistle.com/support for instructions on how to obtain warranty service. You must follow Whistle's warranty process. Whistle may provide warranty service (i) at a Whistle authorized retailer or service provider location, where service is performed at the location, or the Whistle authorized retailer or service provider may send the product to a Whistle repair service location for service, (ii) by sending you prepaid shipping labels (and if you no longer have the original packaging, Whistle may send you packaging material)to enable you to ship the Product to Whistle's repair service location for service, or (iii) by sending you new or refurbished customer‐installable replacement product or parts to enable you to service or exchange your ownProduct ("DIY Service"). Upon receipt of the replacement Product or part, the original Product or part becomes the property of Whistle and you agree to follow instructions, including, if required, arranging the return of the original Product or part to Whistle in a timely manner. When providing DIYService requiring the return of the original Product or part, Whistle may require a credit card authorization as security for the retail price of the replacement product or part and applicable shipping costs. If you follow instructions, Whistle will cancel the credit card authorization, so you will not be charged for the product or part and shipping costs. If you fail to return the replacement product or part as instructed, Whistle will charge the credit card for the authorized amount. Service options are subject to change at any time. In accordance with applicable law, Whistle will require that you furnish proof of purchase details before receiving warranty service. Please refer to the documentation accompanying the Product for more details on this and other matters on obtaining warranty service. Your Product will be returned to you configured as originally purchased, subject to applicable updates.Whistle does not provide warranty service or support outside of the UnitedStates of America or Canada and will not, and will have no obligation to repair, replace, or otherwise provide warranty service for a Product shipped to Whistle from a location, or based on a warranty request from a customer who resides outside of the United States of America or Canada.
End User License Agreement
Updated: November 4, 2019
Effective Date: February 16, 2017
This End User License Agreement ("EULA") isa legal agreement between you and Whistle for use of the software ("Software")embedded on your Whistle-branded Products. BY USING THE SOFTWARE YOU ARE AGREEING TO BE BOUND BY ALL OF THE TERMS SET FORTH IN THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE; YOU MAY RETURN THE PRODUCT IN ACCORDANCE WITH OUR RETURN POLICY, IF APPLICABLE.
License Grant.
On and subject to the terms and conditions in thisEULA, Whistle hereby grants to you a non-exclusive, non-transferable, limited license to use the Software embedded on the Product. The terms of this EULA will govern any upgrades provided by Whistle that replace or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. The license rights granted under this EULA are limited to the first 30 days after you first use theSoftware unless you supply information necessary to activate your subscription to the Whistle pet location Services. You may activate the Service by downloading the Whistle Product Application located at the Apple App Store andGoogle Play.
Restrictions.
You agree not to copy, create derivative works, reproduce, modify, or distribute the Software, or otherwise exceed the scope of the foregoing license. Subject to applicable law, you agree not to decompile, reverse engineer, disassemble, or otherwise attempt to learn the source code, structure, or algorithms underlying the Software. You agree not to (i) remove any copyright or other proprietary notice from the Software, (ii) sublicense or transfer the Software to a third party; (iii) extract or replace any part of the Software; or (iv) sell, rent, lease, lend, provide commercial hosting services, or otherwise transfer the Software for value. This EULA does not allow you to use the Software on a Product that you do not own or control, and you may not distribute or make the Software available over a network where it could be used by multiple devices at the same time.
No Other Rights.
Any rights not expressly granted to you are reserved byWhistle and its affiliates. Neither this EULA nor any act by Whistle pursuant to or in connection with this EULA (including, without limitation, the delivery or conveyance of any hardware or software product) shall be construed to provide expressly, by implication, by way of estoppel, or otherwise, any license or any rights under any patents, copyrights, or any other intellectual property rights of Whistle or its affiliates, except as expressly provided inParagraph 1 of this EULA.
Ownership.
The Software is licensed and not sold. You agree thatWhistle and its licensors retain all right, title, and interest in and to theSoftware and all copies of the Software, including all copyrights therein. TheSoftware is protected by copyright and other intellectual property laws and treaties. Please see "Whistle Legal Agreements" available atwww.whistle.com/legal/foradditional ownership, licensing, and warranty information about additional software components included with the Product, if any.
Upgrades.
To use Software identified as an upgrade, you must first be licensed for the Software identified by Whistle as eligible for the upgrade. After upgrading, you may no longer use the Software that formed the basis for your upgrade eligibility. You acknowledge and agree that Whistle may automatically check the version of the Software or its components that you are utilizing and may provide upgrades or fixes to the Software.
Technical Information.
You agree that Whistle and its affiliates may collect and use technical information related to the Product, the Software, the Services, and your usage thereof. Our use of such information is further described in ourWhistle Privacy Policy.
Termination.
This EULA shall terminate immediately, without notice, if you fail to comply with any material term of this EULA. In addition,Whistle may terminate this EULA at any time upon notice to you and by posting notice on our website located at www.whistle.com. Upon termination you agree to immediately erase the Software from your Product and personal computer.Sections 2, 3, 4and 7–12 shall survive the expiration or termination of thisEULA.
Disclaimer of Warranty.
THE SOFTWARE IS LICENSED TO YOU ON AN "AS IS"BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING,WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON–INFRINGEMENT OR THAT USE OF THE SOFTWARE WILL BE UNINTERUPPTED OR ERROR-FREE, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED WITH RESPECT TO THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED IN THOSE JURISDICTIONS. PRODUCTS MANUFACTURED AND SOLD BY WHISTLE MAY,IF APPLICABLE, BE COVERED BY WHISTLE’S LIMITED PRODUCT WARRANTY, A COPY OF WHICH CAN BE ACCESSED HERE.
LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WHISTLE, ITS MANUFACTURERS, SUPPLIERS, SERVICE PROVIDERS,LICENSORS, PARTNERS, RESELLERS, OR ANY OF THEIR AFFILIATES, SUCCESSORS, OR PERMITTED ASSIGNS, OR ANY OF THEIR OR THEIR AFFILIATES’ RESPECTIVE OWNERS,DIRECTORS,OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE SOFTWARE OR THE OTHER MATTERS TO WHICH THIS EULA RELATES UNDER ANY CONTRACT, NEGLIGENCE,TORT,STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR:
1. ANY DIRECT, INDIRECT,INCIDENTAL, GENERAL,SPECIAL, PUNITIVE, AGGRAVATED, OR CONSEQUENTIAL DAMAGES OFANY KIND WHATSOEVER(INCLUDING, WITHOUT LIMITATION, LOST DATA, LOST PROFITS,LOST CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY,LOSS OF PRIVACY,FAILURE TO MEET ANY DUTY, INCLUDING, WITHOUT LIMITATION, THE DUTIES OF GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), EVEN IF SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
2. ANY AMOUNT IN THE AGGREGATE IN EXCESS OF$30.00, WHICH AMOUNT SHALL BE SUCH PERSONS’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY (EXCEPT, WITH RESPECT TO THE PRODUCT, ANY REMEDY OF REPAIR OR REPLACEMENT, AS ELECTED BY WHISTLE, WITH RESPECT TO ANY CLAIM UNDER WHISTLE’S LIMITED PRODUCT WARRANTY);
3. ANY DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR
4. ANY MATTER BEYOND WHISTLE’S REASONABLE CONTROL.
Export.
The Software is subject to the export control laws and regulations of the United States and other jurisdictions. You agree to comply with all applicable international and federal laws and regulations.
U.S. Government End Users.
This section only applies to the U.S. Government or if you are or are acting on behalf of an agency or instrumentality of the U.S.Government. The Software is "commercial computer software" developed exclusively at private expense. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction, and disclosure of the Software is governed by the terms of this EULA.
Miscellaneous.
Certain additional notices Whistle is required to provide with certain software components can be found at www.whistle.com/legal and are incorporated into this EULA by this reference. Your use of software components together with the Whistle, Inc. Software is subject to the terms of your separate license from Whistle, Inc. Compliance with all copyright laws and software licenses included in this EULA are the responsibility of the user. The laws of the State of California, USA, without regard to California’s conflict of law principles, govern this EULA. The United Nations Convention on Contracts for the Sale of International Goods does not apply to this EULA. In the event of any conflict between this EULA and the Product Terms of Sale or the WhistleFIT General Terms and Conditions (as applicable), the Product Terms of Sale orWhistle FIT General Terms and Conditions (as applicable) shall control with respect to the subject matter thereof.
FCC Compliance Information
Updated: November 4, 2019
EffectiveDate: November 11, 2019
Please see the User Manual for the Product that you have purchased for the FCC Compliance Statement as required by 47 C.F.R. §15.19. The following compliance information is in addition to and supplements the FCC Compliance Statement set forth therein. In the event of a conflict between the FCC compliance information set forth below and the FCC Compliance Statement set forth in yourProduct User Manual, your Product User manual shall control.
This device complies with Part 15 of the FCC Rules.Operation is subject to the following two conditions:
1. This device may not cause harmful interference, and
2. This device must accept any interference received, including interference that may cause undesired operation.
Warning: Changes or modifications not expressly approved by the party responsible for compliance could void the user’s authority to operate the equipment.
Note: This equipment has been tested and found to the limits for a Class B digital device, pursuant to Part 15 of the FCCRules. These limits are designed to provide reasonable protection against harmful interference in a residential installation. This equipment generates uses and can radiate radio frequency energy and, if not installed and used in accordance with the instructions, may cause harmful interference to radio communications. However, there is no guarantee that interference will not occur in a particular installation. If this equipment does cause harmful interference to radio or television reception, which can be determined by turning the equipment off and on, the user is encouraged to try to correct the interference by one of the following measures:
1. Reorient or relocate the receiving antenna.
2. Increase the separation between the equipment and receiver.
3. Connect the equipment into an outlet on a circuit different from that to which receiver is connected.
4. Consult the dealer or an experienced radio/TV technician for help.
This portable transmitter with its antenna has shown compliance with FCC’s SAR limits for general population / uncontrolled exposure.
The maximum listed SAR level is 0.61 W/kg (body).
The antenna used for this device must not be co-located or operating in conjunction with any other antenna or transmitter.