Terms of Service
Last Revised: August 1, 2017
Welcome to the Whistle Messaging, Inc. (“Whistle”) messaging platform including without limitation this website and the Whistle app (the “Platform”). Please review the following notices, terms and conditions (“Terms”) concerning your use of the Platform.
ACCEPTING THESE TERMS
BY DOWNLOADING THE APP OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU AGREE TO BE BOUND BY ALL OF THE TERMS BELOW INCLUDING YOUR AGREEMENT TO SUBMIT DISPUTES TO BINDING ARBITRATION. Please read all of the terms before you use the Platform. If a term does not make sense to you, please let us know. If you don’t agree to all of the terms, you may not use the Platform.
Whistle reserve the right to change these Terms from time to time. For example, Whistle may need to change these Terms if it comes out with a new feature or as the Platform adapts to changes in the market and its user base. If Whistle makes changes, it will notify you by revising the date at the top of the Terms and, in some cases, it will provide you with additional notice (such as adding a statement to its homepage or sending you an email notification). Whistle encourages you to review these Terms periodically to stay informed about its practices.
Whenever Whistle makes changes to these Terms, they are effective when the revised Terms are posted unless it notifies you otherwise. If you continue to use the Platform after the revised Terms have been posted, then you will be deemed to have accepted the changes to these Terms.
NO ACCESS TO EMERGENCY SERVICES
The Platform is not a replacement for your ordinary mobile or fixed line telephone. The Platform does not allow you to make emergency calls or send emergency messages to emergency services. You must make alternative communications arrangements to ensure that you can make emergency calls and send emergency messages if needed.
You acknowledge and agree that: (i) Whistle is not required to offer access to emergency services under any applicable federal state or local law or regulation; (ii) it is your responsibility to purchase, separately from Whistle, traditional wireless (mobile) or fixed line telephone services that offer access to emergency services, and (iii) the Platform is not a replacement for your primary telephone and/ or messaging service(s).
GENERAL USE PROVISIONS
All materials provided on Whistle, including, but not limited to, information, documents, products, logos, graphics, sounds, images, software and services (“Materials”), are provided either by Whistle or by third party manufacturers, authors, developers and vendors (“Third Party Providers”) and are the copyrighted work of Whistle and/or its Third Party Providers. Except as stated herein, none of the Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or other means without the prior express written permission of Whistle. Also, you may not “mirror” any Materials contained on the Platform on any other server without Whistle’s prior express written permission.
Except where expressly provided otherwise by Whistle, nothing on the Platform shall be construed to confer any license, offer for license or sale under any of Whistle’s or any Third Party Provider’s intellectual property rights, whether by estoppel, implication or otherwise. You acknowledge sole responsibility for obtaining any such licenses (see “Legal Contact Information” below). Materials provided by Third Party Providers have not been independently reviewed, tested, certified or authenticated in whole or in part by Whistle and as such, Whistle makes no warranty with respect to its contents. Whistle does not provide, sell, license or lease any of the Materials other than those specifically identified as being provided by Whistle.
Parties using the Platform must respect the right of users to control the SMS messages they receive.
Whistle asks for and obtains consent by receiving an explicit opt-in from the user for all SMS messaging; this can be accomplished via an SMS opt-in process, a voice response, electronic response, or other legitimate methods recognized by the FCC which adhere to the TCPA.
Whistle clientele must implement consent or opt-in for a specific messaging program. Consent is not carried into other programs unless the user has consented to such communications either: (i) when they consented to the initial program or (ii) upon the commencement of a subsequent program.
Whistle clientele must implement a basic termination or opt-out process so that users can stop receiving SMS messages. Users must be able to exercise their choice to opt-out from any message. This method must be functionally equivalent to methods used to obtain opt-in, and must be easily discoverable by users. Explanations on how to opt-out of multiple messaging programs must be provided on a reasonably frequent basis.
LINKS TO THIRD PARTY SITES
The Platform may contain links to websites controlled by parties other than Whistle. Whistle is not responsible for and does not endorse or accept any responsibility for the contents or use of these third-party websites. Whistle is providing these links to you only as a convenience, and the inclusion of any link does not imply an endorsement by Whistle of the linked website. It is your responsibility to take precautions to ensure that whatever you select for your use is free of viruses or other items of a destructive nature.
Except where expressly provided otherwise by Whistle, all comments, feedback, information or materials submitted to Whistle through or in association with Whistle (“Submissions”) shall be considered non-confidential and Whistle’s property. By providing such Submissions to Whistle, you agree to assign to Whistle, at no charge, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions. Whistle shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. You acknowledge that you are responsible for the Submissions that you provide, and that you, not Whistle, have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright.
EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY WHISTLE, THE MATERIALS ON THE PLATFORM ARE PROVIDED “AS IS” AND WHISTLE HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. WHISTLE MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTIES, OR CONDITIONS AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY OF THE MATERIALS CONTAINED ON THE PLATFORM.
LIMITATION OF LIABILITY
WHISTLE SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED AS A RESULT OF USING, MODIFYING, CONTRIBUTING, COPYING, DISTRIBUTING OR DOWNLOADING THE MATERIALS. IN NO EVENT SHALL WHISTLE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF INFORMATION AVAILABLE FROM WHISTLE, EVEN IF WHISTLE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU HAVE SOLE RESPONSIBILITY FOR THE ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE PLATFORM AND YOU WILL NOT MAKE A CLAIM AGAINST WHISTLE FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM THE USE OF THE MATERIALS. YOU AGREE TO HOLD WHISTLE HARMLESS FROM, AND YOU COVENANT NOT TO SUE WHISTLE FOR, ANY CLAIMS BASED ON OR RELATED TO THE USE OF THE PLATFORM.
The Platform may include inaccuracies or typographical errors. Whistle and the Third Party Providers may make improvements and/or changes in the products, services, programs and prices described on the Platform at any time without notice. These Terms represent the entire understanding relating to the use of the Platform and prevail over any prior or contemporaneous, conflicting or additional, communications. Whistle, at its sole discretion, has the right and may periodically make changes to the Terms in whole or in part at any time, without notice, by updating this posting. Any rights not expressly granted herein are reserved by Whistle.
INTELLECTUAL PROPERTY NOTICES
Elements of the Platform are protected by trade dress and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound or image from Whistle may be copied or retransmitted unless expressly permitted by Whistle.
Whistle, TryWhistle, the Whistle logo and other Whistle product names referenced herein are trademarks of Whistle, and may be registered in the United States Patent and Trademark Office and in other countries. All other product names, company names, marks, logos, and symbols are trademarks of their respective owners.
DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
Whistle respects the intellectual property rights of others. Whistle may, in appropriate circumstances and at its sole discretion, terminate the access of users who infringe the copyrights or intellectual property rights of others.
If you believe your work has been copied and is accessible at our website in a way that constitutes copyright infringement, or that our website contains links or other references to another online location that contains material or activity that infringes your copyright, you may notify us by providing our copyright agent the information required by the U.S. Online Copyright Infringement Liability Limitation Act of the U.S. Digital Millennium Copyright Act, 17 U.S.C. §512.
Our agent for notice of claims of copyright infringement related to the Platform can be reached as follows:
Whistle Messaging, Inc.
c/o Foundation Law Group LLP
445 South Figueroa, Suite 3100
Los Angeles, CA 90071
Consent to Electronic Communications
By using the Platform, you agree that Whistle may communicate with you electronically regarding your use of the Platform and that any notices, agreements, disclosures or other communications that Whistle sends to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent from receiving electronic notice, please notify Whistle at firstname.lastname@example.org.
SUSPENSION AND TERMINATION
Whistle may suspend or terminate your rights to access or use the Platform for any reason or for no reason at all and with or without notice at Whistle’s discretion. Suspension or termination may include restricting access to and use of the Platform. All of the terms of these Terms (excluding the license grant) will survive any termination or suspension. Termination of access to the Platform will not release either party from any obligations incurred prior to the termination and Whistle may retain and continue to use for its own internal purposes any information previously provided by you.
GOVERNING LAW; ARBITRATION
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH WHISTLE AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WHISTLE.
These Terms shall be governed by and construed in accordance with the laws of the State of California and the United States of America, without resort to any conflict of law provisions. In the event of any controversy or claim arising out of or relating in any way to these Terms or the Platform, you and Whistle agree to consult and negotiate with each other and, recognizing your mutual interests, try to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, then either of the parties may, by notice to the other demand mediation under the mediation rules of the JAMS/Endispute (“JAMS”) in Los Angeles, California. Both you and Whistle both give up the right to litigate disputes and may not proceed to arbitration without first trying meditation, but you and Whistle are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. Whether the dispute is heard in arbitration or in court, you and Whistle will not commence against the other a class action, class arbitration or other representative action or proceeding.
If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim will be resolved by arbitration in accordance with the rules of JAMS before a single arbitrator in Los Angeles, California. The language of all proceedings and filings will be English. The arbitrator will render a written opinion including findings of fact and law and the award and/or determination of the arbitrator will be binding on the parties, and their respective administrators and assigns, and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
For any disputes that are not handled by arbitration, you agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in Los Angeles, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms or the use of the Platform.