WHISTLE MESSAGING, INC. TERMS OF USE 

Updated: April 28, 2021

Welcome to Whistle!  This website is owned and operated by Whistle Messaging, Inc. (“Whistle,” “we,” “us” or “our”). Please review this page carefully. These Terms of Use (“Terms”) constitute a legal contract between you and Whistle and set forth the terms and conditions under which you are authorized to use our messaging service, the trywhistle.com website and its subdomains (collectively, the “Website” or “Site”), our software applications and mobile versions (the “Apps”), and all portals, products, goods, services, events, and interactive features, or other services controlled by us that post a link to these Terms (collectively, the “Platform”).  By using the Platform, you agree to be bound by and comply with these Terms. We may change these Terms or modify any features of the Platform at any time. The most current version of the Terms can be viewed by clicking on the “Terms of Use” link posted through the Website. You accept any changes to the Terms by continuing to use the Platform after we post the changes. If you do not agree to the Terms, do not use our Platform.

All references to “you” or “your” in these Terms mean the person that registers for, accesses, or uses the Site, App, or the Platform. If you use or access the Platform on behalf of an entity or individual, you represent and warrant that you have the authority to bind that entity or individual, and “you” and “your” refers to that entity or individual as well. Our Platform is not intended for those under the age of 18 – if you access our Platform, you represent and warrant that you are at least 18 years of age. Please note that these Terms contain an arbitration provision and waiver of class action and jury trial.

Privacy Policy and Other Guidelines

Our Privacy Policy is incorporated into these Terms by reference, and constitutes a part of these Terms. By using the Platform, you indicate that you understand and consent to the collection, use and disclosure of your information as described in our Privacy Policy. To the extent that additional rules and guidelines affect your use of the Platform, those rules and guidelines are hereby incorporated by reference into 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 sole responsibility to ensure that you have access to 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 services. 

Third Party Links and Content

We provide our services on behalf of our third-party hotels and other hospitality clients (our “Clients”), and may use third party service providers in order to provide features or services to you. As a result, the Platform may contain links to third-party content that take you outside of the Platform (“Linked Sites”).  Except in connection with their use of our Platform, our Clients and other third parties, as well as their Linked Sites, are not governed by these Terms. We do not control, endorse, sponsor, recommend or otherwise accept responsibility for such Linked Sites, nor do we make any warranties or representations, express or implied, regarding the content (or the accuracy, currency, or completeness of such content) on any Linked Sites. When you follow a link to another website, that website will be governed by different terms of use and a different privacy policy. You acknowledge and agree that we are not responsible for these parties’ use of information you provide them.  You further acknowledge that any reliance on representations and warranties provided by any party other than Whistle will be at your own risk.  You use of Client websites and services will subject you to the terms of use and privacy policies posted on each site or service, and we encourage you to review those agreements before using those sites and services.

Additional Terms and Conditions

In connection with your use of the Platform, you may occasionally be asked to consent to policies or terms and conditions in addition to these Terms. Please read any supplemental policies and terms carefully before making any use of such portions of the Platform. Any supplemental terms will not vary or replace these Terms regarding any use of the Platform unless otherwise expressly stated.

Consent and SMS

Whistle’s Clients are responsible for obtaining any consent necessary to initiate communications via SMS, and for their processing of any Personal Information (as defined in the Privacy Policy). Whistle may process the information and provide additional tools to collect or withdraw consents from users for SMS messaging via an SMS opt-in/opt-out process, a voice responses, electronic response, or other appropriate methods. Notwithstanding these options provided by Whistle, Whistle’s Clients, as the controllers of the data, remain wholly responsible for obtaining any necessary consent and giving effect to users’ choices. Please review our Privacy Policy for more information on how Whistle may process your Personal Information and your choices related to that information. Our SMS services are available to users on the following mobile carriers in the United States: AT&T (includes Cricket), Sprint, T‑Mobile (includes MetroPCS), US Cellular, and Verizon. Normal messaging and data rates may apply. SMS may not be available in all areas.

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 any requirement that the communications be in writing. To withdraw your consent from receiving electronic notices, please notify Whistle at compliance@trywhistle.com.

Prohibited Conduct

You may not access or use, or attempt to access or use, the Platform to take any action that could harm us or any third party, interfere with the operation of the Platform, or in a manner that violates any law(s). For example, and without limitation, you may not:

• Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity or the origin of any information you provide;

• Engage in unauthorized spidering, scraping or harvesting of content or personal information, or use any other unauthorized automated means to compile information;

• Obtain or attempt to gain unauthorized access to other computer systems, materials, information or any services available on or through the Platform;

• Collect or store personal data about other users of the Platform or solicit personal information from any individual without proper rights or the consent of the individual;

• Use any device, software or routine to interfere or attempt to interfere with the proper working of the Platform or any activity conducted on the Platform or attempt to probe, scan, test the vulnerability of, or breach the security of any system or network;

• Circumvent, reverse engineer, decipher, decompile, disassemble, decrypt or otherwise alter or interfere with (or attempt, encourage or support anyone else’s attempt to engage in such activities) any of the software comprising or in any way making up a part of the Platform. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited;

• Take any action that imposes an unreasonable or disproportionately large load on our network or infrastructure;

• Upload or otherwise transmit any communication, software or material that contains a virus or is otherwise harmful to Whistle’s or its users’ computers or systems;

• Send or cause to be sent any communication (including email) to other users without their consent (e.g., “mailbombs” or “spamming”);

• Violate, or encourage any conduct that would violate, any applicable law or regulation; 

• Engage in fraud or misuse of the Services; 

• Cause damage, embarrassment or adverse publicity to Whistle; or

• Engage in any other conduct that restricts or inhibits any person from using or enjoying the Platform or that, in our sole judgment, exposes us or any of our users, affiliates or any other third party to any liability, damages or detriment of any type.

Violations of system or network security may result in civil or criminal liability. We may investigate and work with law enforcement authorities to prosecute users who violate the Terms. We may suspend or terminate your access to the Platform for any or no reason at any time without notice.

User Content

Unless specifically requested, Whistle does not wish to receive any confidential, proprietary, or trade secret from you via the Platform (including via contact email or forms made available on the Platform). You remain fully responsible for the materials that you provide to us, including, without limitation, information, requests, creative works, pictures, photographs, letters, documents, demos, ideas, suggestions, reviews, concepts, methods, systems, designs, plans, techniques or other materials submitted, posted, uploaded, sent or otherwise transmitted to us (“User Content”). If you send Whistle any User Content, you grant Whistle a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable, and sub-licensable right and license to use, copy, reproduce, modify, adapt, print, publish, translate, create derivative works from, create collective works from, and distribute, perform, display, license and sublicense (through multiple levels) such User Content in any media now known or hereinafter invented, including for commercial purposes. In addition to the rights applicable to any User Content, when you post comments or reviews to our Platform or via mentions in social media, you also grant us the right to use the name, username, or profile that you submit with any comment, review, or other content, in connection with the comment, review or other content. 

You agree not to provide User Content that:

• Infringes on the copyright, trademark, patent or other intellectual property right of any third party;

• Is false, misleading, libelous, defamatory, obscene, abusive, hateful or sexually explicit;

• Violates a third party’s right to privacy or publicity;

• Degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification;

• Contains epithets or other language or material intended to intimidate or incite violence;

• Contains a virus, worm, Trojan Horse, time bomb or any other harmful program or component;

• Contains any commercial material or solicits any funds (charitable or commercial), perpetuates chain letters or pyramid schemes, promotes commercial entities, or otherwise engages in commercial activity; or

• Violates any applicable local, state, national or international law, or advocates illegal activity.

Since Whistle does not control the User Content posted on the Platform, we do not guarantee the truthfulness, integrity, suitability, or quality of the User Content, and we do not endorse such User Content.  We are not obligated to use your User Content and may delete, modify, reuse, move or remove any User Content at any time. We do not guarantee any confidentiality with respect to any User Content. Under no circumstances will Whistle be liable in any way for User Content made available through the Platform by you or any third party. 

The obligations that you have to us under these Terms shall survive termination of the Platform, any use by you of the Platform, as well as any User Content uploaded or sent through the Platform, or the termination of these Terms.

Account Creation

To access and use the Platform, we may require you to first register for an account (“Account”). You agree to provide accurate, current, and complete information during the registration process, and to update such information to keep it accurate, current, and complete. If you create an Account, you are responsible for maintaining the confidentiality of your account and password, and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your registration, username, password, and/or Account. We therefore urge you not to share your Account credentials with anyone. We may, in our sole discretion, terminate your password, account (or any part thereof) or use of the Platform at any time and for any or no reason. Whistle will not be liable to you or any third party for any termination of your access to the Platform. If your status as a user of the Platform is terminated, you will (i) stop using the Platform and any information obtained from the Platform, and (ii) destroy all copies of your account information, password and any information obtained from the Platform. 

Intellectual Property

This Platform contains content that is protected under the copyright, trademark and other intellectual property laws of the United States and other countries (“Content”) and these rights are valid and protected in all forms, media, and technologies existing now and hereinafter developed. Unless otherwise provided in these Terms or elsewhere indicated on the Website, all intellectual property rights in the Content are owned by us or our third-party licensors to the full extent permitted under United States and international intellectual property laws, including, without limitation, all videos, text, graphics, user interfaces, visual interfaces, photographs, moving images, illustrations, files, trademarks, logos, service marks, artwork, computer code, design, structure, selection, coordination, “look and feel,” and arrangement of the Content. All trademarks displayed on our Platform are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of such parties. In addition, any use of trademarks or inks to the websites of third parties is not intended to imply that those third parties endorse or have any affiliation with Whistle. 

Your use of this Platform shall not grant you any claim of ownership over any Content, and you agree to comply with all applicable intellectual property laws. You may print copies of the Content, provided that these copies are made only for personal, non-commercial use, and provided that you maintain any notices contained in the Content, or maintained by the licensor or author, such as all copyright notices, trademark legends, attributions, by-lines or other proprietary rights notices. You may not publish, reproduce, distribute, display, perform, edit, adapt, modify or otherwise exploit any part of the Platform, including the Whistle name and logo, without our prior written consent. You may provide a link to the top page of the Website unless and until Whistle gives notice that you must discontinue linking to the Website. You may not store electronically any significant portion of Content from this Platform. The use of Content from this Platform on any other site, including by linking or framing, or in any networked computer environment, for any purpose, is prohibited without our prior written approval.

Claims of Infringement

Whistle respects the intellectual property of others and requires that you do the same. In the event that you find content posted on our Platform that you believe infringes the copyright ownership or other intellectual property rights of you, your company, or any third party, you are requested to immediately contact Whistle’s Copyright Agent as described below, in accordance with the Digital Millennium Copyright Act (“DMCA”). Whistle will promptly respond to notices of alleged copyright infringement that are duly reported and Whistle will disable and/or remove access to the website for users who are repeat infringers. To report alleged infringement, please provide Whistle’s Copyright Agent the following information:

DMCA Notice of Alleged Infringement (“Notice”)

• Identify the copyrighted work that you claim has been infringed, or if multiple works are covered by this Notice you may provide a representative list of the copyrighted works that you claim have been infringed.

• Identify the material or link you claim is infringing and provide a description of where the infringing work is located on the website.

• Provide your mailing address, telephone number and, if available, email address.

• Include both of the following statements in the body of the Notice:

• “I hereby state that I have a good-faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., fair use).”

• “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”

• Provide your full legal name and your electronic or physical signature.

• Deliver this Notice, with all items completed, to the Whistle Copyright Agent:

Copyright Agent Whistle Messaging, Inc. 31416 Agoura Road, #105 Westlake Village, CA  91361 United States

Email Address: copyright@trywhistle.com, subject line “DMCA Notice” 

While Whistle considers all such notices seriously, you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that content or activity is infringing. Accordingly, if you are uncertain whether material infringes your copyrights (including whether use of copyrighted material may constitute fair use) you may wish to seek the advice of an attorney.

Indemnification

You agree to defend, indemnify, and hold harmless Whistle, its officers, directors, affiliates, agents and employees, from and against any claims, losses, damages, fines, penalties or other liabilities, including reasonable attorney’s fees and costs, made by any third party due to or arising out of your posting of any content on our Platform, or any other use of our Platform in a manner not permitted by these Terms, including without limitation, (i) your actual or alleged violation of any of these Terms, and/or (ii) your violation of any third party right, including any copyright, trademark, trade secret or privacy right related to your User Content (as applicable) or use of this Platform, or any other user of the Platform using your computer, mobile device, or account credentials.

Disclaimer of Warranties

YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE OPERATION OF THE PLATFORM OR THE INFORMATION, MATERIALS, GOODS OR SERVICES APPEARING OR OFFERED ON THE PLATFORM, ALL OF WHICH ARE PROVIDED “AS IS.” WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY (1) WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (2) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (3) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE PLATFORM; (4) WARRANTIES RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS OR COMPLETENESS OF DATA MADE AVAILABLE ON THE PLATFORM OR OTHERWISE BY WHISTLE; (5) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE OR OTHER ACTS OR OMISSIONS BY WHISTLE OR ANY THIRD PARTY; AND (6) WARRANTY OF TITLE. FURTHER, WHISTLE DOES NOT WARRANT THAT THE PLATFORM WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, (1) THAT THE PLATFORM OR ANY EMAIL WE SEND YOU IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY BECAUSE OF YOUR ACCESS TO, USE OF OR BROWSING ON THE PLATFORM OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE PLATFORM; OR (2) THAT THE PLATFORM, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, ACCURATE, COMPLETE, UP-TO-DATE OR UNINTERRUPTED. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

Limitation of Liability

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL WHISTLE (OR ITS OFFICERS, DIRECTORS, AFFILIATES, AGENTS, EMPLOYEES, OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE PLATFORM) BE LIABLE FOR DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES AND LOST PROFITS, ARISING OUT OF YOUR ACCESS, USE, MISUSE OR INABILITY TO USE THE PLATFORM, PLATFORM CONTENT, USER CONTENT OR ANY LINKED SITES, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE. THESE LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WHISTLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL WHISTLE’S AGGREGATE LIABILITY (OR THE AGGREGATE LIABILITY OF ITS OFFICERS, DIRECTORS, AFFILIATES, AGENTS OR EMPLOYEES) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, THE PLATFORM, THE WEBSITE, THE APPS, OR THE SERVICES (WHETHER IN CONTRACT, TORT, NEGLIGENCE, WARRANTY OR OTHERWISE) EXCEED THE GREATER OF $100 OR THE AMOUNT PAID BY A CLIENT FOR WHISTLE’S SERVICES IN THE TWELVE (12) MONTHS PRECEDING ANY CLAIM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHISTLE’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WHISTLE DISCLAIMS ALL LIABILITY OF ANY KIND ARISING FROM THE UNAUTHORIZED ACCESS TO OR USE OF YOUR INFORMATION. IF YOU ARE DISSATISFIED WITH THE PLATFORM, YOUR SOLE REMEDY IS TO STOP USING THE PLATFORM.

Applicable Law;Jurisdiction

These Terms are governed by, and must be construed in accordance with, the laws of the United States and the State of California, as applicable, without resort to any conflict of laws provisions. By using the Platform, you waive any claims that may arise under the laws of other countries or territories. 

Dispute Resolution; Class Action and Jury Trial  Waiver

With respect to any and all disputes arising out of or in connection with the Platform or these Terms (including, without limitation, the Privacy Policy), Whistle and you agree to first negotiate in good faith and undertake reasonable efforts to cooperate with one another in order to achieve a mutually satisfactory resolution. If you and Whistle do not resolve any dispute by informal negotiation within 60 days, then either of the parties may, by notice to the other, demand mediation under the supervision of JAMS (“JAMS”) in Los Angeles, California. If settlement is not reached within 90 days after service of a written demand for mediation (which time can be extended with the agreement of both parties in writing), any unresolved controversy or claim will be resolved by initiating binding arbitration in accordance with the rules of JAMS before a single arbitrator in Los Angeles, California. 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. 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.  Both you and Whistle understand that you are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final. Any court with jurisdiction over the parties may enforce the arbitrator’s award. 

Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis and neither you nor Whistle will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. To the extent permitted by law, any claim or dispute under this agreement must be filed within one year in an arbitration proceeding, regardless of any statute or law to the contrary. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred. If any other provision of this section is found to be illegal or unenforceable, that provision will be severed, with the remainder of this section remaining in full force and effect. 

You agree that Whistle is entitled to obtain preliminary injunctive relief to the extent allowed by law to enforce any of the terms of these Terms pending a final arbitral decision, and you and Whistle understand that you 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.  Any disputes that are not handled by arbitration shall be filed only in the state and federal courts located in Los Angeles County, California, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts. 

Access Outside the United States

If you are visiting the Platform from a location outside of the United States, be advised that your information may be transferred from your location through and to servers located in the United States or elsewhere. The data protection laws in the United States and in other countries may differ from those of the country in which you are located, and your information may be subject to access requests from governments, courts, or law enforcement in the United States according to laws of the United States. By using the Platform or providing us with any information, you consent to the transfer to, and processing, usage, sharing and storage of your information in the United States and in other countries. Please see our Privacy Policy for more information. 

Miscellaneous

You agree and understand that these Terms, together with any other applicable click-through agreements you may have entered into regarding our Platform, constitutes the entire agreement between Whistle and you regarding your use of the Platform, superseding any prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us. In the event any provision of these Terms is held unenforceable, it will not affect the validity or enforceability of the remaining provisions and will be replaced by an enforceable provision that comes closest to the intention underlying the unenforceable provision. You agree that no joint venture, partnership, employment or agency relationship exists between you and Whistle as a result of these Terms or your access to and use of the Platform. You further agree that these Terms and any other agreements referenced herein may be assigned by us, in our sole discretion, to a third party in the event of a merger or acquisition or otherwise. Our failure to enforce any provisions of these Terms or respond to a violation by any party does not waive our right to subsequently enforce any terms or conditions of the Terms or respond to any violations. Nothing contained in these Terms is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Platform or information provided to or gathered by us with respect to such use.