Whistle Labs, Inc. | Product Terms of Sale
IMPORTANT: BEFORE OPENING OR USING ANY WHISTLE-BRANDED DEVICE, INCLUDING, BUT NOT LIMITED TO, WHISTLE GPS, WHISTLE ACTIVITY MONITOR, AND WHISTLE 3 (INDIVIDUALLY AND COLLECTIVELY, THE "PRODUCT"), THE USER OF THE PRODUCT ("USER" or "YOU") MUST READ AND AGREE TO THESE TERMS OF SALE (THIS "AGREEMENT"). IF YOU DO NOT AGREE TO ALL OF THE 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 WHISTLE LABS, INC. ("WHISTLE," "WE," "US," "OUR") AT SUPPORT@WHISTLE.COM 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 DO NOT 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.
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.
Money Back Guarantees
Refund policies vary for specific Products. Please see below for product-specific policies:
- 90-Day Money Back Guarantee (Whistle 3): If at any time within 90 days of purchasing Your Whistle 3 You are not completely satisfied, You may return it to Whistle for a refund. Please note the 90-day guarantee applies only to the Whistle 3. 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 3. 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 3, simply contact Whistle Support within 90 days of the date of Your purchase to request a full refund. Whistle Support will provide You with a RMA for your return. Make sure to indicate You are requesting to return a Whistle 3. After receiving Your RMA, package Your Whistle 3 and send it to Whistle’s warehouse, following the instructions provided. About 2 weeks after Whistle receives Your Whistle 3, 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 be packed in its original packaging including all accessories that shipped with the Product, and Returned Product 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 90 days (for Whistle 3) of Your purchase date and the Product must be received by Whistle within 10 days after issuance of the RMA.
- 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 to Whistle. 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 the Product 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.
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 can email firstname.lastname@example.org or call Whistle’s Customer Experience Center at 844-5-WHISTL (844-594-4785). Current operating hours of Whistle’s Customer Experience Center are available at www.whistle.com/support.
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, a copy of which can be found at www.whistle.com/legal/product-warranty. Except to the extent expressly set forth in the Limited Product 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:
- ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE PRICE PAID BY USER FOR THE PRODUCT;
- 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, 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.
Updated Date: October 5, 2018