NOTICE: YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS. PLEASE READ THESE TERMS CAREFULLY, AS THEY INCLUDE INFORMATION ABOUT FUTURE CHANGES TO THESE TERMS, LIMITATIONS OF LIABILITY, A CLASS ACTION WAIVER, AND AN AGREEMENT TO RESOLVE DISPUTES BY ARBITRATION INSTEAD OF BY A COURT PROCEEDING. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING TERMS, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective Date: October 13, 2020
Welcome to Whisper. Please read on to learn the rules and restrictions that govern your use of our hearing system, including our hearing aid device and associated hardware (including but not limited to earpieces, Whisper Brain, charger, batteries and carrying case) (the foregoing “Hardware”), proprietary upgradeable software embedded on the Hardware (“Software”); and mobile phone application (the “Application”, “Whisper App” or the “App”) (collectively, the “Services”).
You must agree to and accept all of these Terms, or you don’t have the right to use the Services. Your using the Services in any way means that you agree to all of these Terms. These Terms, as they may be updated from time to time, will remain in effect while you use the Services.
WARNING: To avoid damage to you or your Hardware, review these Terms, including our User Manual, and follow all warnings and instructions for use. The User Manual contains important safety information, including about proper usage of the Services, side effects users may experience from the Services and storage of the Hardware. The Services are intended for adults only. The Services are not for use by those with profound hearing loss and must be issued by an audiologist or other healthcare professional. Consult a hearing care specialist or other healthcare professional to determine if the Services are right for your type of hearing loss.
We do not provide medical advice.
WHISPER IS NOT ITSELF A HEALTHCARE PROVIDER AND DOES NOT REPLACE YOUR EXISTING RELATIONSHIP WITH YOUR HEALTHCARE PROVIDER. NO LICENSED MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED WHEN YOU USE THE SERVICES.
WHILE WE HOPE THE SERVICES ARE USEFUL TO YOU, THEY ARE NOT INTENDED AS A SUBSTITUTE FOR, NOR DO THEY REPLACE, PROFESSIONAL MEDICAL ADVICE OR DIAGNOSIS. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED HEALTHCARE PROVIDER UNDER ANY CIRCUMSTANCE. DO NOT USE THE SERVICES FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY, IMMEDIATELY CALL 911 AND A HEALTHCARE PROFESSIONAL. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
FURTHERMORE, WHISPER DOES NOT IN ANY WAY ENDORSE OR RECOMMEND ANY HEALTHCARE PROVIDER THAT PRESCRIBES YOU THE SERVICES OR ANY AUDIOLOGIST OR HEARING AID DISPENSER FROM WHOM YOU MAY OBTAIN THE SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ADVICE FROM ANY OF THE FOREGOING INDIVIDUALS.
Will these Terms ever change?
We are constantly trying to improve our Services, especially with periodic software updates, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the Whisper App, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
Eligibility and Access to the Services
Once you have received the Hardware from an audiologist or hearing aid dispenser in accordance with the terms above, you may be required to register or be registered by your hearing care provider to use certain Services. You may not use the Services using any name, information, account or Account Credentials that you do not have a right to use, or using another person’s name with the intent to impersonate that person. You will not share your account with anyone or transfer your account to anyone else, and you must protect the security of your account. You are solely responsible for any activity associated with your account. Never allow others to wear your Hardware, as this could cause permanent damage to the other person’s hearing.
What about my privacy?
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. As the Whisper Hearing System is not designed or approved for use for people under the age of 18, we do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at [email protected]
Are there any restrictions on my use of the Services?
Yes. Your use of the Services must comply with all of these Terms, including the following restrictions:
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
The materials displayed or performed or available on or through the Services, including, but not limited to, settings, preferences, text, graphics, data, articles, photos, images, illustrations, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Whisper’s) rights.
You understand that Whisper owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
You represent, warrant, and agree that you will not contribute any Content or otherwise use the Services or interact with the Services in a manner that:
(a) Infringes or violates the intellectual property rights or any other rights of anyone else (including Whisper);
(b) Violates any law or regulation, including, without limitation, any applicable export control laws;
(c) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) Jeopardizes the security of your Whisper account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) Attempts, in any manner, to obtain a password, account, or other security information from any other user;
(f) Violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) Copies or stores any significant portion of the Content;
(j) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
Do I have to grant any licenses to Whisper?
If you provide us with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (whether through a direct email or otherwise) (“Feedback”), then you grant Company a perpetual, worldwide license to freely use, modify, copy, and distribute such Feedback for any purpose.
Who is responsible for what I see and do on the Services?
Whisper has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Whisper will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Whisper shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between Whisper users, or between users and any third party, you agree that Whisper is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Whisper, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Will Whisper ever change the Services?
We’re always trying to improve the Services, especially with periodic software updates, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features and upgrades or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
What if I want to stop using Whisper?
Whisper is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Whisper has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Whisper.
If you have deleted your Whisper account by mistake, please contact us immediately. We will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
I use the Whisper App available via the Apple App Store and the Google Play Store – should I know anything about that?
These Terms apply to your use of all the Services, including the Applications available via the Apple, Inc. (“Apple”) App Store and the Google Play (“Google”) App Store, but the following additional terms also apply to the Applications:
(a) Both you and Whisper acknowledge that the Terms are concluded between you and Whisper only, and not with Apple or Google, and that Apple or Google is not responsible for the Application or the Content;
(b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(c) You will only use the Application in connection with an Apple or Google operating system device that you own or control;
(d) You acknowledge and agree that Apple and Google have no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple or Google of such failure; upon notification, Apple’s or Google’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) You acknowledge and agree that Whisper, and not Apple or Google, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Whisper, and not Apple or Google, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both you and Whisper acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
(j) Both you and Whisper acknowledge and agree that Apple and Google and any of their subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
(k) In the event you use the Application to provide you with real-time route guidance, your use of this real time route guidance application is at your sole risk. location data may not be accurate, your use of this real time route guidance application is at your sole risk. location data may not be accurate.
What else do I need to know?
- The warranty to your hearing care provider for your hardware is set forth in the limited warranty, available at: whisper.ai/warranty
- Except for the limited Hardware warranty set forth above, neither Whisper nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Whisper or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). No licensed medical professional/patient relationship is created when you use the services. the services are not intended as a substitute for, nor do they replace, professional medical advice or diagnosis. do not disregard, avoid or delay obtaining medical advice from a qualified healthcare provider under any circumstance. The services are not intended for emergency medical needs. If you experience a medical emergency, immediately call a healthcare professional and 911. whisper does not in any way endorse or recommend any healthcare provider that prescribes you the services or any audiologist or hearing aid dispenser from whom you may obtain hardware. in no event shall we be liable to you or anyone else for any decision made or action taken by you in reliance on advice from any of the foregoing individuals. your use of the services is solely at your own risk. the services and content are provided by whisper (and its licensors and suppliers) on an “as-is” basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, non-infringement, or that use of the services will be uninterrupted or error-free. Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
Limitation of Liability. To the fullest extent allowed by applicable law, under no circumstances and under no legal theory (including, without limitation, tort, contract, strict liability, or otherwise) shall whisper (or its licensors or suppliers) be liable to you or to any other person for (a) any indirect, special, incidental, or consequential damages of any kind, including damages for lost profits, loss of goodwill, work stoppage, accuracy of results, or computer failure or malfunction, or any action you take based on the information you receive in through or from the services, or (b) any amount, in the aggregate, in excess of the greater of (i) $100 or (ii) the amounts paid by you to company in connection with the services in the twelve (12) month period preceding this applicable claim, or (c) any matter beyond our reasonable control. some states do not allow the exclusion or limitation of certain damages, so the above limitation and exclusions may not apply to you.
Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify and hold Whisper, its affiliates, officers, agents, employees, and partners (collectively the “Whisper Indemnitees”) harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) (“Losses”) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Whisper’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Whisper may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Whisper agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Whisper, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Whisper, and you do not have any authority of any kind to bind Whisper in any respect whatsoever. You and Whisper agree that there are no third-party beneficiaries intended under these Terms other than Apple’s third party beneficiary rights in relation to the Application.