Terms of Service
Last Updated July 2019
By accessing or using the websites, web or mobile applications or blogs (collectively, the “Sites”) provided by Dog & Whistle Corp. or our affiliates (collectively, “Dog & Whistle,” “we,” “us” or “our”), you agree to be bound by these Terms and all of the terms incorporated by reference. If you do not agree to these Terms, you may not access or use the Sites or order, receive or use the products and services made available through the Sites (collectively, the “Products”).
If you are using the Sites on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or such entity violates these Terms.
We reserve the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing to you notice, which may occur through the Sites or updating the “Last Updated” date at the beginning of these Terms or other means. By continuing to access or use the Sites or order, receive or use Products, you confirm your acceptance of the revised Terms and all of the terms incorporated by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites or order, receive or use the Products. If you do not agree to the revised Terms, you may not access or use the Sites or order, receive or use the Products.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) you are 18 years of age or older, (b) you are a legal resident of the United States, (c) you have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) your registration and your use of the Sites will comply with all applicable laws, (e) you do not have more than one Dog & Whistle account, and (f) you have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
- Registration, Account and Communication Preferences
In order to access and use certain areas or features of the Sites, you will need to register for a Dog & Whistle account. By creating an account, you agree to (a) provide accurate, current and complete account information about you and your pet(s), (b) maintain and promptly update from time to time as necessary your account information, (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account. Additionally, we reserve the right to refuse access to, or use of the Sites to anyone, and may terminate any account, at any time, in our sole discretion. You are only authorized to create and use one account for the Sites and are prohibited from using alter egos or other disguided identities when using the Sites.
By creating a Dog & Whistle account, you also consent to receive electronic communications from us (e.g., via text, email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us. We may also send you promotional communications, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional communications at any time by following the accompanying unsubscribe instructions or contacting us.
- Terms of Sale
- 4.1. Pet food; Meal Subscriptions; Continuous Subscriptions; Cancellation Policy
Pet Food. OUR PRODUCTS ARE DESIGNED FOR PET CONSUMPTION. Our food is specifically formulated for pets, not people!
Meal Subscriptions. We offer different subscription plans for our various meals (each, a “Subscription”).
Continuous Subscriptions. WHEN YOU REGISTER FOR A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) DOG & WHISTLE (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS. IF YOUR PAYMENT DETAILS CHANGE, YOUR CARD PROVIDER MAY PROVIDE US WITH THE UPDATED PAYMENT DETAILS. WE RESERVE THE RIGHT TO USE THESE UPDATED DETAILS FOR FUTURE CHARGES IN ORDER TO HELP PREVENT ANY INTERRUPTION TO THE DELIVERY OF SERVICE.
ADDITIONALLY, BY SIGNING UP FOR OUR SUBSCRIPTION YOU ARE AGREEING TO RECURRING PERIODIC PAYMENTS FOR AN INDEFINITE TIME UNTIL DEACTIVATED BY YOU OR US, ON THE SUBSCRIPTION TERMS SET OUT IN THE APPLICATION FORM YOU HAVE COMPLETED, SUBJECT TO VARIATION IN ACCORDANCE WITH THIS SECTION. YOU CAN DEACTIVATE YOUR SUBSCRIPTION AT ANY TIME, PROVIDED THAT YOU DO SO WITHIN THE APPLICABLE DEACTIVATION NOTICE PERIOD SET FORTH BELOW. YOU WILL NOT BE CHARGED FOR ANY DEACTIVATION. YOU CAN RE-SUBSCRIBE AT ANY TIME FOLLOWING YOUR DEACTIVATION, BUT WE RESERVE THE RIGHT NOT TO PERMIT RE-SUBSCRIPTION WHERE WE HAVE PREVIOUSLY ELECTED TO TERMINATE A SUBSCRIPTION BY YOU.
FURTHERMORE, FOLLOWING YOUR INITIAL SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME LENGTH, AT THE THEN-CURRENT, NON-PROMOTIONAL SUBSCRIPTION RATE. YOU CAN LOG ON TO YOUR ACCOUNT TO DEACTIVATE YOUR SUBSCRIPTION OR EMAIL INFO@DOG & WHISTLE.COM AND WE WILL DO IT FOR YOU. FULL DETAILS FOR DEACTIVATION PROCEDURES ARE SET FORTH BELOW THIS SECTION. IF YOU DEACTIVATE, YOU MAY USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM; YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT TERM EXPIRES. YOU WILL NOT BE ELIGIBLE FOR A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD.
In the event you freeze or cancel your Subscription, please note that we may still send you promotional communications unless you opt out of receiving those communications by following the accompanying unsubscribe instructions or contact us.
- 4.4. Free Trials & Other Promotions
From time to time, we may offer free trials or other promotions for specified periods of time. If we offer you a promotion, additional terms will be provided in the marketing materials describing the particular promotion or at registration. In the event of a conflict with these terms, the specific terms of the promotion will prevail.
WITH RESPECT TO FREE TRIALS, ONCE YOUR FREE TRIAL ENDS, WE (OR OUR THIRD PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL. INSTRUCTIONS FOR FREEZING OR CANCELING YOUR SUBSCRIPTION ARE DESCRIBED IN SECTIONS 4.1 ABOVE. PLEASE NOTE THAT YOU MAY NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE PROMOTIONS, INCLUDING ONGOING FREE TRIALS, AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
- 4.5. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your account, you can do so at any time by logging into your account.
Products purchased by and shipped to users in locations in the U.S. may be subject to applicable state or local sales or use tax, privilege tax or similar transaction-based taxes(“State Tax”). Products purchased and shipped to users in locations outside the U.S. may also be subject to applicable taxes, including value added taxes (collectively, with State Tax, “Taxes”). The amount of Taxes is based on a number of factors, including but not limited to the type of Products purchased, your billing address or the location of the designated delivery address if different from the billing address.
You are responsible for paying the applicable Taxes and/or duties associated with the purchase of any Products through the Service. For Buyers in the U.S., the rate of Taxes applied to purchase of taxable Products is a combined rate based on the state and local rates of the address where the Products are purchased or shipped to.
You acknowledge that the amount billed may vary due to promotional offers, changes to your Subscription or changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
In the event your credit card fails when we attempt a charge, we will try again periodically and promptly notify you and try again periodically. If we cannot successfully charge your card, we reserve the right to not send your Order. If we do send your Order, you are responsible for prompt payment.
- 4.5.1 Charge Timing for Subscriptions and Subscription Add-ons
We will charge for your first order at the time you complete signup. Subsequent orders typically will be charged 4-8 days prior to your next scheduled delivery, though timing may vary.
- 4.5.2. Charge Timing for One-time Purchases
One-time purchases not part of a subscription plan, or placed concurrently with a first subscription order, will be charged at the time the order is placed.
- 4.5.3. Changes to Recurring Orders
CHANGES TO AN UPCOMING RECURRING ORDER MUST BE RECEIVED BY 11:59AM PACIFIC TIME ON THE DAY YOU ARE TYPICALLY CHARGED TO TAKE EFFECT FOR THE FOLLOWING WEEK (for instance, if you are charged on Thursdays for Orders received on Tuesdays, you need to make changes by 11:59AM Pacific Time on Thursday for the next Tuesday Order). We reserve the right to change or modify our charge times and order cutoff at our sole discretion.
- 4.6 Account Ledger
Your account may be associated with a ledger with a positive or negative balance. Balances may be created or earned through prepayments, loyalty incentives or other offers or mechanisms we make available from time to time. Your balance may be negative if we are unable to process payment for an Order.
When we process an Order for payment we first will debit any existing account balance and then charge the remainder to your payment method. Similarly, if you have a negative balance such amount first will be added to the charge amount.
- 4.6.1 Promotional Credit
At our discretion we may offer the ability to purchase account credits at a discount, such as $100 of account credit for $90 (“Promotional Credits”). PROMOTIONAL CREDITS ARE NONREFUNDABLE AND ONLY MAY BE USED TO PURCHASE OUR PRODUCTS.
- 4.6.2. Loyalty or Gift Credit
At our discretion we may place credit in your account. Such credit has no cash value, may expire and may only be used for purchases of our Products.
- 4.6.3. Memberships
At our discretion we may make available the purchase of memberships entitling you to certain benefits or discounts over a specified period of time. Memberships are nonrefundable.
- 4.6.4. Gift Cards
We may make available gift cards entitling the holder to purchase Products from us (“Gift Cards”). Gift Cards do not expire and cannot be redeemed for cash unless the balance is $10 or less. To redeem a low-balance card for cash please email care@Dog & Whistle.com.
- 4.7. Pricing and Availability
All prices are shown in U.S. dollars and applicable Taxes and other charges, if any, are additional unless explicitly stated otherwise. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with your Subscription, we will provide advance notice of such changes in accordance with Section 3. We will not, however, be able to notify you of changes in any applicable Taxes. The shipment of a Subscription to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your Subscription in accordance with the cancellation policies set forth herein. Note that if you request a recipe change, or make a recipe change in your account section, your price will likely change and you will not receive a notice outside of your account section.
All of our Products are subject to availability, and we reserve the right to impose limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products (including, but not limited to, specific meal ingredients or entire meals) without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of certain Products and market conditions beyond our control, we may be required to make substitutions from time to time. If you are not satisfied with a substitution, please contact us at care@Dog & Whistle.com.
- 4.8. Deliveries
We send Orders for delivery through third-party carriers. You are responsible for inspecting all Products you receive for any damage or other issues upon delivery, including that the Product is at a refrigerated temperature. To maintain the quality and integrity of the Products, you should immediately remove the food from the box and liner and refrigerate according to the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety, which can be found here. From the time of delivery, the condition and consumption of the Products are solely at your risk, and you are solely responsible for the proper handling, preparation, storage, use and consumption of the Products following delivery.
If you are not at home when your delivery arrives, the carrier will leave the package door wherever is feasible or customary for your location. We encourage you to provide specific delivery instructions in your account section, but we cannot guarantee that the carriers will follow them. Our food is designed to remain fresh for multiple hours after delivery, but depending on the season and temperature in your area at the time of delivery you should plan in advance for proper storage. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself.
WE RESERVE THE RIGHT TO CHARGE AN ADDITIONAL FEE IF OUR CARRIER CANNOT DELIVER A PACKAGE BECAUSE YOU PROVIDED IMPROPER INSTRUCTIONS OR THE CARRIER IS UNABLE TO LEAVE THE PACKAGE.
While we strive to provide the best customer experience possible, we are not liable for the actions or inactions of third party carriers. Please contact us as soon as possible if you experience an issue with the carrier.
IT IS YOUR RESPONSIBILITY TO NOTIFY US IMMEDIATELY IF YOU DO NOT RECEIVE YOUR PACKAGE DURING YOUR SCHEDULED DELIVERY WINDOW.
In the case of inclement weather or other events beyond our control that interfere with our ability to deliver your Order, our carrier will attempt to deliver your Order as soon as reasonably possible. In the event that timely delivery is not feasible, we may retry, cancel your delivery for the period so affected and issue you a credit, or resend a new Order at a later date.
- 4.9. Dry Ice
We may place dry ice in Orders with perishable product to ensure temperature control in transit. You understand that dry ice may cause injuries if it comes into contact with exposed skin or is left to sublimate in an area without appropriate ventilation. You agree to keep dry ice away from animals and people, in an area with adequate airflow.
- 4.10. No Resale
You are not permitted to resell or otherwise use the Products for commercial purposes.
- 4.11. Care Grade Guarantee
If you are a Subscription customer, if you don’t see the benefits of a fresh diet within 30 days of feeding, please contact us at care@Dog & Whistle.com within 10 days of the 30th day of feeding. We will reimburse up to $40 of your next food purchase upon receiving valid proof of purchase of an alternative Product.
- 4.12. Service Charges
At our sole discretion, we reserve the right to charge service fees, including, but not limited to, the following circumstances: (a) you request a change to your Order after our change cutoff and we are able to accommodate your request; (b) you request an Order sent outside of our normal service area; (c) you request a non-standard variation of our Product.
- 4.13. Food Amounts
If you are a Subscription customer, based on information you provide we send an amount of meal plan Product likely to meet the needs of your pet. However, every pet is unique and it is your responsibility to monitor their reaction to the Product and request any necessary adjustments. Our recommended portion sizes are based on you feeding only our Product, and we obviously cannot account for other food or treats that you feed without specific and accurate information from you.
- 4.14. Health Conditions & Product Suitability
It is your responsibility to verify whether our Products are suitable for your pets and to inform us if your pet has any health issues, including allergies. We are not veterinarians and DO NOT offer veterinary advice. We make NO REPRESENTATIONS about the suitability of our Product for your specific pet, and disclaim all liability associated with any adverse reactions. If you are concerned about whether our Products are suitable for your pet, please consult with your veterinarian.
- 4.15 Delivery Area
We may change our delivery zones at any time and without notice. To determine whether we deliver to a specified address please enter an address into our signup process or email us at INFO@Dogand Whistle.com.
- 4.16. Returns and Refunds
We do not accept returns of perishable Products or opened items. Return requests on no-perishable, unopened items must be made within 2 weeks of receipt and include all original packaging. we will issue a refund, less a $5 restocking fee, upon receipt of the returned items. Refunds may be made at our discretion in the event of any problems with the Products.
- License to Access and Use Our Sites and Content
Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the Dog & Whistle logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are our proprietary property or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, no sublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and you will not (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Dog & Whistle or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by us or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
- Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
- Designated Contact: Legal Department
“Dog & Whistle,” the Dog & Whistle logo and any other Product or service names, logos or slogans that may appear on the Sites or Products are trademarks of Dog & Whistle and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Dog & Whistle” or any other name, trademark or Product or service name of Dog & Whistle without our prior written permission. In addition, the look and feel of the Sites and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Dog & Whistle and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Dog & Whistle or any of our Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use our logo or other proprietary graphics to link to the Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any of our trademarks, logos or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our express written consent.
Dog & Whistle makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
- Third Party Content
We may display content, advertisements and promotions from third parties through the Sites or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that we are not responsible or liable in any manner for such interactions or Third Party Content.
- User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not:
Engage in any harassing, threatening, intimidating, predatory or stalking conduct; Use or attempt to use another user’s account without authorization from such user and Dog & Whistle; Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner; Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Sites; Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Sites that you are not authorized to access; Develop any third party applications that interact with User Content or the Sites without our prior written consent; Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality; Bypass or ignore instructions contained in the robots.txt file that controls all automated access to the Sites; or Use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
- User Content
The Sites may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). In the event you decide to share your User Content with others through the Sites or third party platforms, you understand that this User Content will be viewable by others. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Sites.
By using the interactive features and areas of the Sites, you further agree not to create, post, share or store any of the following:
User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
User Content that impersonates, or misrepresents your affiliation with, any person or entity;
User Content that references or depicts Dog & Whistle or our Products but fails to disclose a material connection to us, if you have one (for example, if you are a Dog & Whistle employee or paid blogger);
User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
User Content that contains any private or personal information of a third party without such third party’s consent;
User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Sites or Products, or that may expose us or others to any harm or liability of any type.
We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense.
- Rights in User Content
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Sites or to our pages or feeds on third party social media platforms (e.g., Dog & Whistle’s Facebook page, Instagram page or Twitter feed), you hereby grant us a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to the Sites or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize us to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Dog & Whistle, the Sites or the Products (collectively, “Feedback”). Feedback is nonconfidential and shall become our sole property. We shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. In the event all such rights and title do not vest in us immediately, you hereby grant to us a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display all such Feedback.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Dog & Whistle, and our respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Dog & Whistle Parties”), from and against all actual or alleged Dog & Whistle Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Sites, Content or Products including, but not limited to, microbiome Products and data, human consumption of Products designed for pets, misuse of the Product, or feeding in violation of recommendations), (b) any User Content you create, post, share or store on or through the Sites or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, (e) your violation of the rights of another, and (f) any third party’s use or misuse of the Sites or Products provided to you. You agree to promptly notify us of any third party Claims and cooperate with the Dog & Whistle Parties in defending such Claims. You further agree that the Dog & Whistle Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between us.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE HANDLING, PREPARATION, STORAGE, USE AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US. YOU ACKNOWLEDGE THAT WE HAVE NO LIABILITY WHATSOEVER FOR HUMAN CONSUMPTION OF PRODUCTS DESIGNED FOR PETS. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU OR YOUR PET MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE YOU OR YOUR PET HANDLE, PREPARE, USE OR CONSUME SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE MAY STORE, PORTION AND PACKAGE PRODUCTS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.
WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
ALL PRODUCTS AND THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. DOG & WHISTLE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
- Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DOG & WHISTLE OR ANY OF THE OTHER DOG & WHISTLE PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM US, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF DOG & WHISTLE AND THE OTHER DOG & WHISTLE PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM US EXCEED THE AMOUNT ACTUALLY PAID FOR SUCH PRODUCTS. THE FOREGOING LIMITATION SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE DOG & WHISTLE AND THE OTHER DOG & WHISTLE PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE DOG & WHISTLE AND THE OTHER DOG & WHISTLE PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH DOG & WHISTLE PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
- Modifications to the Sites and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) or the provision of the Products at any time and without liability.
- Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- 18.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and we agree (a) to waive your and our respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and our respective rights to a jury trial. Instead, you and we agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
- 18.2. No Class Arbitrations, Class Actions or Representative Actions
You and we agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and us and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and we agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and we agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
- 18.3. Federal Arbitration Act
You and we agree that these Terms affect interstate commerce and that the enforceability of this Section 18 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
- 18.4. Notice; Informal Dispute Resolution
You and we agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to us shall be sent by email to info@DogandWhistle.com. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Dog & Whistle account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and we cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or we may, as appropriate and in accordance with this Section 18, commence an arbitration proceeding or, to the extent specifically provided for in Section 18.1, file a claim in court.
- 18.5. Process
Except for Disputes arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and we agree that any Dispute must be commenced or filed by you or us within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and we will no longer have the right to assert such claim regarding the Dispute). You and we agree that (a) any arbitration will occur in the State of California, County of San Francisco, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of San Francisco, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
- 18.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
- 18.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
- 18.8. Severability
If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
- 18.9. Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by emailing us at info@Dog & Whistle.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 19.
- Governing Law and Venue
These Terms, your access to and use of the Sites and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of San Francisco.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your account: all defined terms and Sections 1, 3, 4, 5 (first paragraph only), 6, 7, 8 (second paragraph only), 9 through 23.
These Terms constitute the entire agreement between you and Dog & Whistle relating to your access to and use of the Sites and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.