Updated: November 4, 2019
Effective Date: February 16, 2017
This End User License Agreement ("EULA") is a legal agreement between you andWhistle, Inc. ("Whistle") for use of the software ("Software") embedded on your Whistle-branded devices, (individually and collectively, the "Product").BY USING THE SOFTWARE YOU ARE AGREEING TO BE BOUND BY ALL OF THE TERMS SET FORTH IN THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE; YOU MAY RETURN THE PRODUCT IN ACCORDANCE WITH OUR RETURN POLICY, IF APPLICABLE.
1. License Grant.
On and subject to the terms and conditions in this EULA, Whistle hereby grants to you a non-exclusive, non-transferable, limited license to use the Software embedded on the Product. The terms of this EULA will govern any upgrades provided by Whistle that replace or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. The license rights granted under this EULA are limited to the first 30 days after you first use the Software unless you supply information necessary to activate your subscription to the Whistle pet location services ("Services"). You may activate the Service by downloading the Whistle Product Application located at the Apple App Store and Google Play.
2. Restrictions.
On and subject to the terms and conditions in this EULA, Whistle hereby grants to you a non-exclusive, non-transferable, limited license to use the Software embedded on the Product. The terms of this EULA will govern any upgrades provided by Whistle that replace or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. The license rights granted under this EULA are limited to the first 30 days after you first use the Software unless you supply information necessary to activate your subscription to the Whistle pet location services ("Services"). You may activate the Service by downloading the Whistle Product Application located at the Apple App Store and Google Play.
3. No Other Rights.
Any rights not expressly granted to you are reserved by Whistle and its affiliates. Neither this EULA nor any act by Whistle pursuant to or in connection with this EULA (including, without limitation, the delivery or conveyance of any hardware or software product) shall be construed to provide expressly, by implication, by way of estoppel, or otherwise, any license or any rights under any patents, copyrights, or any other intellectual property rights of Whistle or its affiliates, except as expressly provided in Paragraph 1 of this EULA.
4. Ownership.
The Software is licensed and not sold. You agree that Whistle and its licensors retain all right, title, and interest in and to the Software and all copies of the Software, including all copyrights therein. The Software is protected by copyright and other intellectual property laws and treaties.Please see "Whistle Legal Agreements" available atwww.whistle.com/legal/for additional ownership, licensing, and warranty information about additional software components included with the Product, if any.
5. Upgrades.
To use Software identified as an upgrade, you must first be licensed for the Software identified by Whistle as eligible for the upgrade.After upgrading, you may no longer use the Software that formed the basis for your upgrade eligibility. You acknowledge and agree that Whistle may automatically check the version of the Software or its components that you are utilizing and may provide upgrades or fixes to the Software.
6. Technical Information.
You agree that Whistle and its affiliates may collect and use technical information related to the Product, the Software, the Services, and your usage thereof. Our use of such information is further described in ourWhistle Privacy Policy located at www.whistle.com/legal/privacy-policy.
7. Termination.
This EULA shall terminate immediately, without notice, if you fail to comply with any material term of this EULA. In addition, Whistle may terminate this EULA at any time upon notice to you and by posting notice on our website located at www.whistle.com. Upon termination you agree to immediately erase the Software from your Product and personal computer. Sections 2, 3, 4and 7–12 shall survive the expiration or termination of this EULA.
8. Disclaimer of Warranty.
THE SOFTWARE IS LICENSED TO YOU ON AN "AS IS" BASIS,WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON–INFRINGEMENT OR THAT USE OF THE SOFTWARE WILL BE UNINTERUPPTED OR ERROR-FREE, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED WITH RESPECT TO THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED IN THOSE JURISDICTIONS. PRODUCTS MANUFACTURED AND SOLD BY WHISTLE MAY, IF APPLICABLE, BE COVERED BY WHISTLE’S LIMITED PRODUCT WARRANTY, A COPY OF WHICH CAN BE ACCESSED HERE.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WHISTLE, ITS MANUFACTURERS, SUPPLIERS, SERVICE PROVIDERS, LICENSORS, PARTNERS, RESELLERS, OR ANY OF THEIR AFFILIATES, SUCCESSORS, OR PERMITTED ASSIGNS, OR ANY OF THEIR OR THEIR AFFILIATES’ RESPECTIVE OWNERS, DIRECTORS,OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE SOFTWARE OR THE OTHER MATTERS TO WHICH THIS EULA RELATES UNDER ANY CONTRACT, NEGLIGENCE, TORT,STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR:
I. ANY DIRECT, INDIRECT,INCIDENTAL, GENERAL, SPECIAL, PUNITIVE, AGGRAVATED, OR CONSEQUENTIAL DAMAGES OFANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST DATA, LOST PROFITS,LOST CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY,LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, INCLUDING, WITHOUT LIMITATION, THE DUTIES OF GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), EVEN IF SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
II. ANY AMOUNT IN THE AGGREGATE IN EXCESS OF $30.00, WHICH AMOUNT SHALL BE SUCH PERSONS’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY (EXCEPT, WITH RESPECT TO THE PRODUCT, ANY REMEDY OF REPAIR OR REPLACEMENT, AS ELECTED BY WHISTLE, WITH RESPECT TO ANY CLAIM UNDER WHISTLE’S LIMITED PRODUCT WARRANTY);
III. ANY DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR
IV. ANY MATTER BEYOND WHISTLE’S REASONABLE CONTROL.
10. Export.
The Software is subject to the export control laws and regulations of the United States and other jurisdictions. You agree to comply with all applicable international and federal laws and regulations.
11. U.S.Government End Users.
This section only applies to the U.S. Government or if you are or are acting on behalf of an agency or instrumentality of the U.S. Government.The Software is "commercial computer software" developed exclusively at private expense. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction, and disclosure of the Software is governed by the terms of this EULA.
Miscellaneous.
Certain additional notices Whistle is required to provide with certain software components can be found at www.whistle.com/legal and are incorporated into this EULA by this reference. Your use of software components together with the Whistle, Inc. software is subject to the terms of your separate license from Whistle, Inc. Compliance with all copyright laws and software licenses included in this EULA are the responsibility of the user. The laws of the State of California, USA, without regard to California’s conflict of law principles, govern this EULA. The United Nations Convention on Contracts for the Sale of International Goods does not apply to this EULA. 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 EULA is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect and enforceable. This EULA is not assignable, transferable, or sublicensable by you except with Whistle’s prior written consent. Whistle may transfer, assign, or delegate this EULA and its rights and obligations without your consent. Both parties agree that this EULA is the complete and exclusive statement of the mutual understanding of the parties with respect to the Software and any other subject matter referenced in this EULA, and supersedes and cancels all previous written and oral agreements, communications and other understandings relating thereto. Whistle reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on theWebsite 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. Notwithstanding the foregoing, the parties acknowledge the existence and validity of the Whistle Privacy Policy, the Whistle Product Terms of Sale or Whistle FIT General Terms and Conditions, as applicable, the Whistle Terms of Use, and the Whistle Customer Contract (for cellular-based pet location services) that, if applicable to your Product or to services provided to you by Whistle, govern the Product, those other services, and the related matters set forth in those other contracts and are additional contracts that you agree to and by which you are also bound. A copy of the Whistle Privacy Policy may be found at www.whistle.com/legal/privacy-policy. A copy of the Whistle Terms of Use may be found at www.whistle.com/legal/terms-of-use. A copy of the Whistle Terms of Sale may be found in the documents included in your Product package at the time of purchase or at www.whistle.com/legal/terms-of-sale. A copy of the Whistle FIT General Terms and Conditions may be found in the documents included in your Product package at the time of purchase or at www.whistle.com/legal/fit-terms. Please keep this EULA, a copy of the Whistle Privacy Policy, Whistle Terms ofUse or Whistle FIT General Terms and Conditions (as applicable), and the Whistle Terms of Sale for your records. In the event of any conflict between this EULA 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 EULA and you do not have any authority of any kind to bind Whistle in any respect whatsoever. Headings foreach section have been included above for your convenience, but such headings do not have any legal meaning. Except as expressly set forth in this EULA you and Whistle agree there are no third party beneficiaries intended under this EULA.
