Whistle FIT General Terms and Conditions
IMPORTANT: YOU ("USER," "YOU," OR "YOUR") MUST READ AND AGREE TO THESE WHISTLE FIT GENERAL TERMS AND CONDITIONS (THIS "AGREEMENT") BEFORE OPENING OR USING THE WHISTLE FIT (THE "PRODUCT") IN ANY WAY. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE PRODUCT, AND YOU MUST, WITHIN 30 DAYS OF YOUR RECEIPT OF THE PRODUCT, (A) CONTACT WHISTLE LABS, INC. ("WHISTLE," "WE," "US," "OUR") AT 855-999-0471 AND (B) ARRANGE FOR THE RETURN OF THE PRODUCT TO THE SOURCE FROM WHICH YOU RECEIVED IT.
You have received a free version of the Product. This Agreement shall govern Whistle’s license to you, and your use of, such free Product. If you purchased the Product, this Agreement does not apply to you and you should refer to Whistle’s Product Terms of Sale, available at www.whistle.com/legal/terms-of-sale.
PLEASE READ THIS AGREEMENT CAREFULLY, INCLUDING, WITHOUT LIMITATION, THE ARBITRATION PROVISION. 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 OR JURY TO DECIDE YOUR CLAIMS, IF ANY, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
By using the Product, User acknowledges the existence and validity of, and agrees to be bound by, the End User License Agreement (available at www.whistle.com/legal/end-user-agreement) for the software embedded on User’s Product ("Software").
User shall not: (a) distribute, market, resell, transfer, or otherwise 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
Without limiting the restrictions on use, if you 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 IS SOLELY AT YOUR OWN RISK.
Exclusion of Warranties; Liability Limitation
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.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHISTLE, ITS MANUFACTURERS, SERVICE PROVIDERS, LICENSORS, AND EACH OF THEIR RESPECTIVE AFFILIATES SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS, STATUTORY, OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS. IF WHISTLE, ITS MANUFACTURERS, SERVICE PROVIDERS, LICENSORS, OR ANY OF THEIR RESPECTIVE AFFILIATES CANNOT LAWFULLY DISCLAIM STATUTORY OR IMPLIED WARRANTIES THEN TO THE EXTENT PERMITTED BY LAW, ALL SUCH WARRANTIES SHALL BE LIMITED IN DURATION TO ONE (1) YEAR AND TO REPAIR OR REPLACEMENT BY WHISTLE IN ITS SOLE DISCRETION.
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:
- ANY DIRECT DAMAGES IN EXCESS OF $1.00;
- ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, 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;
- DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR
- 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 STATES 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 IN THIS “LIMITATION OF LIABILITY” SECTION ARE NOT APPLICABLE TO NEW JERSEY RESIDENTS.
Notwithstanding anything stated herein or otherwise to the contrary, 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 Subject Matter"), in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office 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 or by 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, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Product constitutes a representation 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 Administration Regulations.
Disputes and Mandatory Arbitration
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 60 days of receiving a copy of this Agreement. Please contact our Customer Experience Center if you would like to opt out of Mandatory Arbitration. If you do not opt out within 60 days of receipt of this Agreement, then you accept Mandatory Arbitration. If you opt out, then you will not be required to arbitrate any claims. There is no penalty or other negative consequence if you do opt out.
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, this Agreement and any Claim will be governed by the laws of the State of California (excluding its conflicts of laws rules), and the arbitration will take place in Santa Clara County, California. The AAA’s Supplementary Procedures for Consumer‐Related Disputes shall apply to the arbitration unless you and we agree otherwise. 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 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 "Claim Notice"), explaining in reasonable detail the nature of the Claim and any supporting facts; and (2) a reasonable good faith opportunity (not less than 30 days) to resolve the claim without the necessity of a legal proceeding. Any Claim Notice directed to Whistle shall be sent to us at Whistle Labs, 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 Subsequent Cases: 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 and we agree that the exercise of cure rights hereunder shall constitute new facts permitting such a renewed motion.
FCC Compliance Statement
a. 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.
b. NOTE: THIS GRANTEE IS NOT RESPONSIBLE FOR ANY CHANGES OR MODIFICATIONS NOT EXPRESSLY APPROVED BY THE PARTY RESPONSIBLE FOR COMPLIANCE. SUCH MODIFICATIONS COULD VOID THE USER’S AUTHORITY TO OPERATE THE EQUIPMENT.
This equipment has been tested and found to comply with the limits for a Class B digital device, pursuant to Part 15 of the FCC Rules. 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:
- Reorient or relocate the receiving antenna.
- Increase the separation between the equipment and receiver.
- Connect the equipment into an outlet on a circuit different from that to which receiver is connected.
- Consult the dealer or an experienced radio/TV technician for help.
IC Radiation Exposure Statement:
This equipment complies with IC RSS-102 radiation exposure limits set forth for an uncontrolled environment. This equipment should be installed and operated with minimum distance 20cm between the radiator & your body.
Cet équipement est conforme aux limites d’exposition aux rayonnements IC établies pour un environnement non contrôlé. Cet équipement doit être installé et utilisé avec un minimum de20cm de distance entre la source de rayonnement et votre corps CAN ICES-3 (B)/NMB-3(B)
FCC Radiation Exposure Statement:
This equipment complies with FCC radiation exposure limits set forth for an uncontrolled environment. This equipment should be installed and operated with minimum distance 20cm between the radiator & your body. The antenna used for this device must not be co-located or operating in conjunction with any other antenna or transmitter.
IC Compliance Statement
This device complies with Industry Canada licence-exempt RSS standard(s). Operation is subject to the following two conditions: (1) This device may not cause harmful interference, and (2) this device must accept any interference, including interference that may cause undesired operation of the device.
Le présent appareil est conforme aux CNR d´Industrie Canada applicables aux appareils radio exempts de licence. L´exploitation est autorisée aux deux conditions suivantes : (1) l´appareil ne doit pas produire de brouillage, et (2) l´utilisateur de l´appareil doit accepter tout brouillage radioélectrique subi, même si le brouillage est susceptible d´en compromettre le fonctionnement