Whistle Labs, Inc. | WHISTLE CUSTOMER CONTRACT
Thank you for choosing a Whistle-branded device or devices (individually and collectively, the "Product") and Whistle’s pet location services (the "Services"). This contract (this "Contract") applies to your paid, trial, promotional, and other subscriptions to the Services for your use in connection with the Product. By using the Product and the Services, you are accepting this Contract and you are bound by its terms and conditions. This Contract applies to all of the Products and Services provided to you by Whistle Labs, Inc. ("Whistle," "We" or "Us").
PLEASE READ THIS CONTRACT 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.
Acceptance of this Contract
THIS 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 Contract.
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 the Services 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 the Services. The Services provide an approximate location of the requested Product and do not provide guaranteed results. The results you obtain from the Services, 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 NOT USE 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 http://www.whistle.com/support or contact our Customer Experience Center 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 for 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 aged 13 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 by calling 1‐844‐5-WHISTL (1‐844‐594‐4785) or by writing to Whistle Labs, Inc. at email@example.com.
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 Contract and Your Service Plan
Changes to Terms of the Contract: The Services are subject to our business policies, practices, and procedures, which we can change without giving notice to you. UNLESS OTHERWISE PROHIBITED BY LAW, WE RESERVE THE RIGHT TO ADD TO, UPDATE, OR AMEND THE TERMS AND CONDITIONS OF THIS CONTRACT AT ANY TIME. Such updates or amendments will be posted on our web site at www.whistle.com. Subject to your receipt of notice of such updates or amendments, you shall be bound by all such updates and amendments from the date the update or amendment is made. Please visit www.whistle.com or contact our Customer Experience Center if you have any questions about these changes and how they apply to your use of the Services and/or your Product.
Service Plans: When you accept this Contract, 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 AS YOUR "PLAN". YOUR PLAN WILL BECOME PART OF THIS CONTRACT. If a term or condition of your Plan expressly conflicts with this Contract, 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 Contract 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; Automatic Renewals: 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 WILL BE TREATED AS NONREFUNDABLE. Except as may be permitted by additional terms, each subscription to the Services is tied to one Product. You may have multiple Products 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 this Contract: You can only use the Product and Services for personal, noncommercial uses. You agree not to resell or redistribute the Services to someone else without our prior written permission, which we can withhold in our sole discretion. You also agree that your Product and the Services won't be used for any purpose that isn't allowed by your Plan or this 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 radiofrequency 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 Contract; (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 your Services 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 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 "Discontinued Product"). If Whistle intends to terminate the wireless line assigned to a Discontinued 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 IN THE 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 your Product 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 A LATE 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 SET BY 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.
Early Termination Fee: With certain types of Plans, 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 Termination Fees. If you buy your Product or purchase the Services from an authorized agent or 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 your Product or the Services.
We reserve the right to waive any of these fees, in whole or in part, at our discretion. If we waive any fee or any other provisions of this 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.
Billing Statements & Account History, Bill Disputes, and Payments
Billing Details: Your Plan details and cost can be viewed online. Please visit www.whistle.com/support or contact our Customer Experience Center 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 Customer Experience 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 otherwise 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 your Plan, 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.
Your Product and Safety
Your Product: Whether you buy your Product from Whistle 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.
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 sixty (60) days of receiving a copy of this Contract. Please contact our Customer Experience Center if you would like to opt out of Mandatory Arbitration. If you do not opt out within sixty (60) days of receipt of this Contract, 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 Federal Arbitration Act applies to this Contract. 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 Contract, any prior agreement or any other facts, and regardless of whether the legal theory is based on this Contract, 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 the EULA will be governed by the provisions of the EULA. 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, the arbitration will take place in the county of your billing address (provided such address is in the United States). For Claims 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 for Consumer‐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 Contract, 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 Contract, this Contract 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 “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 Contract 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.
Disclaimers/Limitation of Liability
Disclaimer of Warranties: FOR THE PURPOSES OF THIS 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 YOU MAY 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 IS AT YOUR OWN RISK AND RESPONSIBILITY.
Waivers and Limitations of Liability: UNLESS THE LAW 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, PRODUCTS 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 OF THE NATURE OF THE CAUSE OF THE CLAIMS, (I) ALLEGING LOSS, COSTS, EXPENSES, DAMAGES, OR INJURIES (INCLUDING INJURIES RESULTING IN DEATH); (II) ARISING OUT OF 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 USE THE 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 HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH ANY OF OUR SERVICE PROVIDERS AND YOU 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 BUT NOT 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.
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, any Product or equipment used to receive the Services. Nothing under this Contract 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 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 the Services. Except as required by law, you acquire no proprietary interest in any number assigned to a Product for its use.
Survival: Those sections of this Contract that by their context are intended to survive (including, without limitation the DISPUTE RESOLUTION Section and the DISCLAIMERS/LIMITATIONS OF LIABILITY Section), shall so survive.
About This Contract: A waiver of any part of this Contract in one instance is not a waiver of any part or any other instance. You cannot assign this Contract or any of your rights or duties under it. We may assign all or part of this Contract or your debts to us without notice, and you agree to make all subsequent payments as instructed.
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.
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 Experience Center by calling (1-415-692-0200) or by writing to Whistle Labs, Inc. Attn: Customer Experience Center at 1355 Market St, 2nd Floor, 94103.
Effective date: October 14, 2015
Updated Date: October 5, 2018