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Terms of Use and Conditions of Purchase

Effective Date: Oct 7, 2021

These Terms of Use and Conditions of Purchase (“Terms” or “Agreement”) constitute a legally binding agreement between you (“you” or “User”) and Kinship Partners, Inc. (“Whistle,” “we,” “us”), and set forth our obligations and responsibilities when you: visit or use the website located at www.whistle.com (“Website”); or purchase or use any Whistle products, including, but not limited to, the Whistle GPS, Whistle Switch, Whistle Activity Monitor, Whistle 3, Whistle Fit, Whistle Go, and Whistle Go Explore ( “Products”), Whistle services (“Services”), or the Whistle mobile application (“Application”).  YOU MUST READ AND AGREE TO THESE TERMS AND CONDITIONS BEFORE USING OR PURCHASING ANY SERVICES OR PRODUCTS OFFERED BY WHISTLE, INCLUDING THE WEBSITE, SERVICES, APPLICATION, AND THE PRODUCTS.

 

THESE TERMS CONTAIN PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS. THIS 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. IF YOU DO NOT AGREE TO ANY PART OF THESE TERMS, THEN PLEASE DO NOT PURCHASE ANY WHISTLE PRODUCTS, VISIT OR USE THE WEBSITE, OR USE ANY OF THE SERVICES.

 

Table of Contents

Use of Website, Products, and Services

You may only use the Website, Products, and Services within the United States or Canada (as specified by Whistle)and for your own personal, non-commercial use. To use certain features of the Products, you must sign up for an account with Whistle by downloading the Whistle Application from Apple App Store or Google Play and, if applicable, pay any fees associated with such account. The Product and Services may not function properly if you do not keep your Whistle account current and up-to-date and pay any fees due.

 

Subject to the terms and conditions of this Agreement, Whistle provides Services that have been selected by you, solely for your own personal, non-commercial use, and not for the use or benefit of any third party. The "Services” include, without limitation, use of the Website, any service Whistle performs for you, and the Content (defined below) offered by Whistle on the Website. 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.

User Restrictions

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; (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.

 

You shall not: (a) distribute, market, resell, transfer, or allow any other individual (other than those in the same household) 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 in writing; (c) remove any proprietary notices, labels, or marks on or in the Products, Application, Services, or Website; (d) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Products, Application, Services, or Website; or (e) use the Products, Application, Services, or Website 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, by-law, 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. 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 are responsible for your activity in connection with the Website, Products, Application, and the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Website, Products, Application, or the Services.

Licenses

By using the Product, you acknowledge the existence and validity of, and agree to be bound by, all terms of this Agreement, including the EULA set forth below for the software embedded the Product (“Software”). 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 Agreement 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. You shall not have 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 or Software.

 

Further, all materials displayed or performed on the Website or the Services, including, without limitation, text, graphics, articles, photographs, images, and illustrations (the "Content") 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. and international copyright and intellectual property 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. 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. Whistle reserves the right to require prior written consent before linking to the Website.

User Account

To use the Website or certain Products or Services, you may be required to register with Whistle and select a password and username ("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 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.

Fees and Payment Fees:

You shall pay all applicable fees in connection with such Products and 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 Products or Services following such notification constitutes your acceptance of any new or increased charges. Unless otherwise expressly set forth herein, any fees paid hereunder are non-refundable.

 

Taxes and Fees: You agree to pay all access, usage, activation, and deactivation fees, and other charges we bill you for or that the authorized user of your Product accepts. Usage charges, taxes, and other fees may vary depending on where, when, and how you use your Product or the Services. You are responsible for, and agree to pay, all taxes, fees, and surcharges set by any governmental agency or taxing authority.

 

Billing Details: Your Plan details and cost can be viewed online. Please visit www.support.whistle.com or contact us at 855-999-0471 if you would like to receive more detailed account history or billing information, You must notify us 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.

 

Payments: All payments must be made in U.S. Dollars or Canadian Dollars. You may be required 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 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.

 

Authorization: By providing a credit card or other payment method accepted by Whistle ("Payment Method"), you expressly agree that we are authorized to keep such Payment Method on file and charge you the fees, charges, or other amounts described above. If you want to use a different Payment Method than the one you signed up to use during registration, or if there is a change in your credit card validity or expiration date, you may edit your Payment Method information by logging in to your account and viewing your account details. When you provide a Payment Method to access your Plan, including in connection with a free trial offer, our system will attempt to verify the information you entered. We do this by processing an authorization hold, which is standard practice. We do not charge you in connection with this authorization hold. If your Payment Method expires and you do not edit your Payment Method information or cancel your account, you authorize us to continue billing, and you will remain responsible for any uncollected amounts..

 

Subscription and Automatic Renewal. If you enroll in a subscription, your subscription will continue, and you will be charged on an automatically recurring basis, at the price and frequency you choose at enrollment, until you cancel. Your subscription will automatically renew on your “Renewal Date,” which is the first day following the end of your period, and your subscription will continue to renew on a regular basis. You can cancel your subscription by visiting support.whistle.com or through the mobile Application. You must cancel at least one day before your next Renewal Date to avoid being charged for your next subscription period. If you do not cancel by this deadline, you will be charged for your next renewal period, and your cancellation will be effective after that period. The charge for each subscription will be billed to the payment method you used to create your account, enroll in the subscription program, or as otherwise directed by you. You authorize us to charge the payment method for your subscription orders on an automatically recurring basis until you cancel. You agree to keep your Payment Method updated in your account.

 

Trial Programs. Whistle may, in its sole discretion, offer free or discounted trial programs that convert into paid automatically renewing subscriptions. By signing up for a trial, you agree to all applicable terms, including the automatic renewal and recurring billing feature. Please read the terms of any trial offers carefully.

Refunds

Refund policies vary by Products. If your purchase is subject to a 90-Day Money Back Guarantee, then you may return your Product to Whistle for a refund within 90 days of the date of your purchase. The 90-day guarantee applies only to Products that are clearly designated as subject to the guarantee, and only to orders made through Whistle’s webstore at whistle.com. It does not apply to any other Whistle products, and the guarantee does not apply to funds paid for any Services.

 

To request a refund, contact Whistle Support within 90 days of the date of your purchase of a Product, or 30 days within the date of your purchase of a subscription Service, to request a refund. Whistle Support will provide you with an Return Merchandise Authorization number (RMA) for your return. After receiving your RMA, package your Product and send it to Whistle’s warehouse, following the instructions provided.

 

Please note that to qualify for a refund, the returned product must be packed in its original packaging including all accessories that shipped with the Product, and the returned product must be undamaged and in good working condition. Shipping and handling charges and taxes are not refundable. You shall assume all risk of loss or damage to the Product while in transit to Whistle. Whistle must receive the Product within 14 days of the return authorization date to process the refund. If the Product is damaged due to reasons outside of Whistle’s control, it is not eligible for a refund.

The Services

You must be within Whistle's coverage area to use the Services and to perform certain functions from your Product. 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 that may impact the availability and quality 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 https://support.whistle.com or call 855-999-0471 if you have any questions regarding interruption of the Services.

 

SMS Charges: The Services may allow you to send and receive text messages (SMS) on your mobile device. You authorize Whistle to send account-related and other SMS to your account. Message and data rates may apply, and you will be responsible for paying such charges. To stop receiving text messages from or in connection with the Services, update your notification settings in your mobile Application.

 

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 artificial voices or prerecorded messages, even if you incur charges for receiving such communications.

 

Service Plans:  YOUR SUBSCRIPTION PACKAGE AND RELATED TERMS ARE YOUR "Plan.” If a term or condition of your Plan expressly conflicts with this Agreement, the term or condition in your Plan will govern. If at any time you change your service, 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 Agreement 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.

 

Our Rights to Limit or End Your Subscription or this Agreement: You are only permitted to use the Products and Services for personal, noncommercial uses. You agree not to resell or redistribute the Products or Services to someone else without our prior written permission, which we can withhold in our sole discretion. WE CAN, WITHOUT NOTICE, LIMIT, SUSPEND, OR END YOUR SUBSCRIPTION OR ANY CONTRACT WITH YOU, including, but not limited to: (i) if you: (a) breach this Agreement, any law, rule or regulation, or rights of us or any third party; (b) make a late payment or, in the case of pre‐paid subscriptions, if your credit or debit card is declined; (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 cannot 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 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. FURTHER, 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 Plan, we reserve the right to 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, or supporting the Product. WHISTLE WILL HAVE NO LIABILITY OR OBLIGATION TO YOU FOR TERMINATING A WIRELESS LINE.

User Submissions

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 ("User Submissions"), you grant Whistle a non-exclusive, worldwide, royalty-free, perpetual, sublicensable, and transferable right to use such User Submissions in connection with the Services, the Product, the Website, and Whistle’s (and its successors’ and assigns’) business, including by reformatting, modifying, creating derivative works of, excerpting, and translating any User Submissions. 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. Under no circumstances will Whistle be liable in any way for any User Submissions, including, without limitation, any errors or omissions, or any loss or damage of any kind incurred in connection with use of or exposure to any User Submissions posted, emailed, accessed, transmitted, or otherwise made available via the Website or the Services.

Third Party Products or Services

The Product and Services rely on certain third-party services, including 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. If you choose to use the Product or Services 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 ANY WARRANTIES PROVIDED BY WHISTLE. Without limiting the foregoing, you 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.

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. The Website or the Services may also be accessible by logging in through a Third-Party Website. 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, or edit the content of any Third-Party Website.

Referral Program

We may offer you the opportunity to participate in referral programs, through which you and the person you refer can receive credit towards future purchases of a Whistle Product (“Referral Programs” or “RAF” program). Your participation in any Whistle Referral Program, which constitutes a “Service” under these Terms, constitutes your agreement to these Terms and any other Referral Program-specific terms communicated to you by us. By making a valid referral through a Referral Program, your referred friend (“Friend”) will receive a discount or credit towards the purchase of future Whistle Products, as specified at the time you sign up. You (“Referrer”) will receive, in Whistle’s sole discretion, gift cards, credit toward Whistle Products, or other cash or credit amounts, at Whistle’s sole discretion. Rewards are subject to verification. Whistle may delay a reward for the purposes of investigation. Rewards cannot be redeemed for cash and cannot be combined with other offers/coupons. Any coupon codes, discounts, and credits provided by Whistle will be valid for six (6)-months after emailed or delivered.

 

The Referral Program is limited to consumers in the United States only. A customer can refer an unlimited number of friends but only receive a maximum of 12 gift cards for successful referrals.

 

To qualify, Friends must be new Whistle customers (must not be a previous customer or already have an active or inactive Whistle account for a Product) and must purchase a Product directly through the referral link within 6 months of the referral. Unless otherwise specified, the referred Friend must purchase a Whistle device, or complete an order greater than the minimum value specified by Whistle. Friends may only redeem one referral per household.

 

For Referrers to qualify, Referrers must have an active Whistle subscription and be in good standing with Whistle without an outstanding balance.

 

Referral requests may be denied for any reason, in Whistle’s sole discretion, including any of the following reasons:

  • The referred Friend and the Referrer cannot be the same person (for example, by using a different email address) 
  • A Referrer may receive a maximum amount of rewards of 12 (twelve) referred Friends

 

If your code is found on any coupon site, blog, or any other public site, we will immediately shut it down and you will not be credited for those referrals.

 

The RAF reward may not be combined with other offers, transferred, or redeemed for cash. For Referrers, this applies even if their GPS service is canceled before their next subscription month and therefore, before any discount has been applied. In addition, the maximum discount that can be applied for Referrers in a given month is equal to the amount the Referrer would have paid for their subscription month if the Refer-A-Friend discounts were not applied. Rewards will be automatically redeemed at the end of the current billing cycle and before the start of the next.

 

All RAF Program participants must comply with Whistle terms and policies and the terms and policies of any social media site where a referral link is posted/used. Referral links are for individual, personal use only and may not be used for commercial purposes such as affiliate lead generation. Whistle reserves the right to cancel the Refer-a- Friend Program or to change these terms at any time in its sole discretion. Any unclaimed referral rewards will be forfeited at that time.

 

By participating in a Referral Program, you agree: not to send multiple emails to the same email address or otherwise use spam or unsolicited email, fax messages, text messages, or telephone marketing; attempt to inflate your rewards by circumventing or otherwise compromising our systems; post ads or links on any third-party website or any third party advertising platforms; or violate any federal or state law including the CAN-SPAM Act, state anti-spam laws, and regulations and guidelines issued by the Federal Trade Commission and Federal Communications Commission. If you are notified by us that a person has requested to “opt-out” of receiving emails from you or Whistle, you shall not send further emails to that person’s email address for the purposes of inducing a purchase or referral.

Pet Insight Project--

If you participate in the Pet Insight Project, you agree to comply with all obligations set forth at the time you sign up or as otherwise provided to you. Further, you acknowledge and agree that Whistle is under no obligation to offer the Pet Insight Project, and Whistle expressly reserves the right to discontinue or revoke your access to the Product at any time for any reason. By participating in the Pet Insight Project, you expressly understand and agree that Whistle may collect, use, and share the information it collects through the Pet Insight Project.

Notice of Infringement; Takedown Requests

Whistle has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA. If you have an intellectual property rights-related complaint about material posted on the Service or the Website, you may contact our Designated Agent at the following address: Whistle Designated Agent: Legal, c/o Kinship Partners, Inc., 440 Park Avenue South, Floor 5, New York NY, 10016. Any notice alleging that materials hosted by or distributed through the Service or Website infringe intellectual property rights must comply include the following information:

  • 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.

Disclaimer of Warranties

The Website, Products, Services, and Application are provided to you “AS IS” and “AS AVAILABLE.” WITHOUT LIMITING THE FOREGOING, WHISTLE DOES NOT MAKE ANY WARRANTIES BEYOND THOSE ON THE FACE OF THE WEBSITE, PRODUCTS, APPLICATION, AND SERVICES. WHISTLE DOES NOT WARRANT THAT ACCESS TO OR USE OF THE PRODUCTS, WEBSITE, APPLICATION, OR SERVICES \WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITES OR PRODUCTS WILL BE CORRECTED. EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF WHISTLE TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE WEBSITE, PURCHASE OF ANY PRODUCTS, ANY COMMUNICATIONS BETWEEN YOU AND WHISTLE (INCLUDING COMMUNICATIONS THROUGH THIRD PARTIES), AND YOUR RIGHTS UNDER THIS AGREEMENT, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID WHISTLE IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLY THE CLAIM(S). SOME JURISDICTIONS, INCLUDING NEW JERSEY, MAY NOT ALLOW THE LIMITATIONS OR EXCLUSIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. CHECK LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THESE LIMITATIONS OR EXCLUSIONS.

MANDATORY ARBITRATION; CLASS ACTION WAIVER

Any dispute relating in any way to your visit to or use of the Website or Application, purchase or use of the Products, the Services, your relationship or communications with Whistle (including indirect communications through third parties), or otherwise related to this Agreement (“Disputes”), shall be resolved exclusively through confidential arbitration, rather than in court, and shall be governed exclusively by the laws of the State of Delaware, without regard to principles of conflict of laws. The United States Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Further, any question as to the validity of this Arbitration Agreement shall be submitted to confidential arbitration and decided by an arbitrator. If a Dispute arises under this Agreement, you agree to first contact us at legal@whistle.com. Before formally submitting a Dispute to arbitration, you and we may choose to informally resolve the Dispute.

 

If any Dispute cannot be resolved informally, you agree that any and all Disputes, including the validity of this arbitration clause and class action waiver, shall be submitted to final and binding arbitration before a single arbitrator of the American Arbitration Association (“AAA”) in a location convenient to you or telephonically. Either you or we may commence the arbitration process by submitting a written demand for arbitration with the AAA and providing a copy to the other party. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org. Except as may be required by law as determined by the arbitrator, no party or arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

 

Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of Delaware: (i) any dispute, controversy, or claim relating to or contesting the validity of our or one of our family company’s intellectual property rights and proprietary rights, including without limitation, patents, trademarks, service marks, copyrights, or trade secrets; (ii) an action by us for temporary or preliminary injunctive relief, whether prohibitive or mandatory, or other provisional relief; (iii) any legal action by us against a non-consumer; and (iv) interactions with governmental and regulatory authorities. You expressly agree to refrain from bringing or joining any claims in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.

 

The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement may be joined to an arbitration involving any other party subject to this Agreement, whether through a class action, private attorney general proceeding, class arbitration proceedings or otherwise. If an arbitrator or court decides that any part of this arbitration agreement is invalid or unenforceable, the other parts of this arbitration agreement shall still apply; however, if an arbitrator or court decides that the class action waiver is invalid or unenforceable, then the entirety of this arbitration agreement shall be null and void. YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE IN A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION. You shall have thirty (30) days from the earliest of the date that you visit the Site, purchase a Product, or submit information through the Site to opt out of this arbitration agreement, by contacting us by email at legal@whistle.com . If you do not opt out by the earliest of the date that you visit the Website, purchase a Product, download the Application, or submit any information to us, then you are not eligible to opt out of this arbitration agreement.

NOTICE TO CALIFORNIA RESIDENTS

With respect to any electronic commercial service (as defined under California Civil Code Section 1789.3) offered on or through the Sites, California residents are entitled to the following specific consumer rights information:

The provider of the Website is:

Mars, Incorporated
6885 Elm Street
McLean, VA 22101

 

To file a complaint regarding the Website or Services, or to receive further information, send a letter to the attention of “Legal Department” at the above address or contact Mars via e- mail at privacy@effem.com (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 916.445.1254 or 800.952.5210.

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. 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. 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 this Agreement, you and Whistle agree there are no third-party beneficiaries intended under this Agreement.

End User License Agreement

This End User License Agreement (“EULA”) governs the software embedded on User’s Product ("Software") when you download the Application.

License Grant.

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. You may activate the Service by downloading the Whistle Product Application located at the Apple App Store and Google Play.

Restrictions

You agree not to copy, create derivative works, reproduce, modify, or distribute the Software, or otherwise exceed the scope of the foregoing license. Subject to applicable law, you agree not to decompile, reverse engineer, disassemble, or otherwise attempt to learn the source code, structure, or algorithms underlying the Software. You agree not to (i) remove any copyright or other proprietary notice from the Software, (ii) sublicense or transfer the Software to a third party; (iii) extract or replace any part of the Software; or (iv) sell, rent, lease, lend, provide commercial hosting services, or otherwise transfer the Software for value. This EULA does not allow you to use the Software on a Product that you do not own or control, and you may not distribute or make the Software available over a network where it could be used by multiple devices at the same time.

 

Additional Terms and Conditions for Apple Users. NOTE – The terms and conditions of this paragraph apply to you only if you downloaded the Application through Apple Inc.’s App Store. You acknowledge that this EULA is between you and Whistle, and that Apple Inc. (“Apple”) bears no responsibility for the Application and its content. The license grant under this EULA is a non-transferable license to use the Application on any Apple- branded products that you own or control as permitted by this EULA and the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the Application may be accessed and used by other accounts associated with you via “Family Sharing” (as defined in the Apple Media Services Terms and Conditions) or volume purchasing. You acknowledge 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, you may notify Apple, and Apple will refund the purchase price (if any) of the Application to you; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application. Apple is not responsible for addressing any claims by you or a third party relating to the Application or your use of the Application, including without limitation: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. In the event of any third-party claim that the Application or your possession and use thereof infringes a third party’s intellectual property rights, Apple will not be responsible for any investigation, defense, settlement, or discharge thereof. Apple and its subsidiaries are third-party beneficiaries of this EULA, and upon Your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against You as a third-party beneficiary thereof.

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 at www.whistle.com/legal/ for additional ownership, licensing, and warranty information about additional software components included with the Product, if any.

 

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 herein.

 

Export Controls. You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (b) listed on any U.S. Government list of prohibited or restricted parties. You hereby agree that (i) you will comply with all applicable Sanctions and Export Control Laws, (ii) you are solely responsible for ensuring that the Application is used, disclosed, and/or transported only in accordance with all applicable Sanctions and Export Control Laws, and (iii) you will not re-export or transfer the Application, in any form, directly or indirectly, to any person or entity based in Cuba, Iran, Syria, Sudan, South Sudan, or North Korea.

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.

Miscellaneous.

Your use of software components together with the Whistle Software is subject to the terms of your separate license from Whistle. Compliance with all copyright laws and software licenses included in this EULA are the responsibility of the user. The laws of the State of Delaware, USA, without regard to Delaware’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.

Whistle reserves the right to change the terms and conditions of this EULA by posting a revised EULA in the Application or mailing or emailing notice thereof to you.  In addition, Whistle may add, modify, or delete any aspect, program, or feature of the Application, although Whistle is not under any obligation to add any upgrade, enhancement, or modification. Your continued use of the Application following any announced change will be conclusively deemed acceptance of any change to the terms and conditions of this EULA (and acceptance of the version of this EULA then in effect).  Accordingly, please review the EULA found in the Application on a periodic basis.

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