Whistle Labs, Inc.

Terms of Use

PLEASE READ THESE TERMS OF USE (THIS "AGREEMENT") CAREFULLY BEFORE VISITING THE WEBSITE (DEFINED BELOW) OR USING THE SERVICES (DEFINED BELOW) OFFERED BY WHISTLE LABS, INC. ("WHISTLE", "WE" OR "US"). BY VISITING THE WEBSITE OR USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO AND SHOULD NOT USE THE WEBSITE OR SERVICES.

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.

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 Agreement, Whistle may offer to provide certain services, as described more fully on the Website, that have been selected by you (the "Services"), 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 Whistle Customer Contract (a copy of the Whistle Customer Contract can be found at www.whistle.com/legal/gps-service-contract). 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 the Services without notice or liability to you. You may choose to use the Website or the Services in connection with one or more Whistle-branded devices (individually and collectively, the "Product"). You may use the Website or the Services in connection with the Product only after you have purchased the Product and read and accepted the Whistle Terms of Sale or Whistle General Terms and Conditions, as applicable, for the Product (each, as applicable, the "Product Terms of Sale") (a copy of the Whistle Terms of Sale can be found at www.whistle.com/legal/terms-of-sale and a copy of the Whistle General Terms and Conditions can be found at www.whistle.com/legal/end-user-agreement/). Whistle reserves the right, in its sole discretion, to modify this Agreement 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 Website or the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.

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 13 without 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 at 855-999-0471. 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 Agreement is void where prohibited by law, and the right to access the Website and the Services is revoked in such jurisdictions.

WEBSITE AND SERVICES CONTENT. 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 Agreement. All materials displayed or performed on the Website 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 the Website 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 the Services are protected by copyright as collective works and/or compilations, pursuant to U.S. 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 the Product (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, Whistle will only share your personally identifiable information in accordance with Whistle’s Privacy Policy, which Whistle may revise from time to time. You also hereby do and shall grant each user of the Website or the Services a non-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 Agreement. 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 does not 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 the Website 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 circumstances will 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, 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 or User 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 if Whistle 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 the Website 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 Maillist, 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 the Website’s or the Services’s 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, and 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 the Services, 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 from Whistle 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 STATES 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.

PRIVACY POLICY. For information regarding Whistle’s treatment of personally identifiable information, please review Whistle’s current Privacy Policy, which is incorporated into this Agreement by this reference and made a part of this Agreement. Your acceptance of this Agreement constitutes your acceptance and agreement to be bound by Whistle’s Privacy Policy.

REGISTRATION AND SECURITY. As a condition to using some aspects of the Website or the Services, 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 so shall constitute a breach of this Agreement, 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 not by 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’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);
  2. 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;
  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 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.

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 Privacy Policy. 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 Agreement. Whistle has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of, or the opinions expressed in, any Third Party 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 that Whistle 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 creditor does 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 the Google 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. This Agreement 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 Agreement or any other agreements that apply to the Product 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. All provisions of this Agreement that by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, arbitration provisions, and limitations of liability.

DISPUTES AND MANDATORY ARBITRATION CLAUSE. 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.

General Arbitration Provisions: The Federal Arbitration Act applies to this Agreement. Any dispute, controversy, or claim between us, regardless of whether based on the Services, the Product, 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 Arbitration Association ("AAA"), provided, however, that any Claim arising out of or related to, as applicable, the End User License Agreement (a copy of which can be found here), the Whistle Product Terms of Sale, the Whistle FIT General Terms and Conditions, or the Whistle Customer Contract will be governed by the provisions of that agreement. Claims within the applicable small claims limit in your jurisdiction may be brought in small 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, 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.

GENERAL. 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. 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). 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 in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable 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. 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 this Agreement, and supersedes and cancels all previous written and oral agreements, communications and other understandings relating thereto, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. Notwithstanding the foregoing, the parties acknowledge the existence and validity of the Whistle Product Terms of Sale or Whistle FIT General Terms and Conditions, as applicable, the EULA, and the Whistle Customer Contract (for cellular-based pet location services) that, if applicable to your Product or to other services provided to you by Whistle, govern the Product, those other services, and related matters as set forth in that other contract and are additional contracts that you agree to and by which you are also bound. In the event of any conflict between this Agreement and the Product Terms of Sale or the Whistle FIT General Terms and Conditions (as applicable), the Product Terms of Sale or Whistle FIT General Terms and Conditions (as applicable) shall control with respect to the subject matter thereof. 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. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning. Except as expressly set forth in the Apple Device and Application Terms section below, you and Whistle agree there are no third party beneficiaries intended under this Agreement.

COPYRIGHT DISPUTE POLICY. 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 of Whistle’s Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") 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 of our advertisers, affiliates, content providers, members, or users; and (2) remove and discontinue service to repeat offenders.

A. Procedure for Reporting Copyright Infringements: 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. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent: It is 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 the Designated 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 information to 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 which Whistle 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 Receive Notification of Claimed Infringement at the following address: Collette Bunton, c/o Whistle Labs, Inc., 1355 Market Street, Suite 210, San Francisco, CA, 94103

APPLE DEVICE AND APPLICATION 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 Agreement is concluded between you and Whistle only, and not with Apple, and that Apple 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 Agreement 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 the Application;
  • You acknowledge and agree that Whistle, and not Apple, 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 the Application 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 that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.

CONTACT. If you have any questions, complaints, or claims with respect to the Website or the Services, you may contact us at Whistle Labs, Inc., 1355 Market Street, Suite 210, San Francisco, CA, 94103, call 855-999-0471.

Updated: 
July 22, 2019
Effective Date: