Terms of Use
Last revised: July 10, 2019
1. Applicability
These Terms of Use apply to all websites that are owned, operated, and maintained by or for Whispered Brands a subsidiary of Cagal LLC (“Whispered Brands,” “we,” “us,” or “our”) and upon which these Terms of Use are linked, including: whisperedbrands.com, whisperadvice.com, kinkaides.com (excepting any sub-domain on which other terms of use are linked) (“Site”) as well as to all orders in the United States placed with us via any other channel (e.g., website, phone, mail). These Terms of Use do not cover any nation-specific websites maintained by our affiliated companies.
2. General Provisions
THESE TERMS OF USE TOGETHER WITH THE PRIVACY POLICY AND ANY SUPPLEMENTAL TERMS, CONDITIONS, OR RULES POSTED TO A SPECIFIC AREA OF THE SITE (COLLECTIVELY, “TERMS”) SET FORTH THE LEGALLY BINDING TERMS GOVERNING YOUR USE OF THE SITE.
By entering the Site or placing an order, you acknowledge and agree to all terms, conditions, and rules stated in these Terms. You are not permitted to use the Site or place an order if you do not agree to be legally bound by these Terms. Please read these Terms carefully.
We may, in our sole discretion, modify the Terms from time to time and we reserve the right to make changes at any time, without notice or obligation, to any of the Terms or the Site. By entering the Site or placing an order, you acknowledge and agree that you shall be bound by any such revisions. We suggest periodically visiting this page of the Site to review these Terms.
3. Jurisdiction and Governing Law
Whispered Brands makes no representations that the information and materials contained within the Site are appropriate for locations outside the United States. By entering the Site, you acknowledge and agree that it is intended for use only by citizens and residents of the United States of America residing within the United States of America aged 18 years or older and will only be governed according to the laws of the State of California without regard to conflicts of laws principles. If you are not a member of the intended audience, you are prohibited from accessing the Site.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, a sale of assets or by operation of law.
4. Content
The Site provides you with information about Whispered Brands’s products and services and allows you to make purchases. All of this information and any other information we provide to you through the Site or any other media (e.g., catalog, flyer, online ad) is referred to herein as “Content.” Although Whispered Brands and all parties involved in creating, producing, or delivering Content make all reasonable efforts to ensure that it is correct and up-to-date, we cannot guarantee 100% accuracy. WE THEREFORE DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES REGARDING SECURITY, CURRENCY, CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS, OR CONTINUED AVAILABILITY WITH RESPECT TO THE SITE AND CONTENT. To the extent any jurisdiction does not allow the exclusion of certain warranties, some of the above exclusions do not apply.
The Site also offers job opening information and provides ways for you to apply for positions. You understand that nothing contained on the Site constitutes an offer of employment by Whispered Brands.
5. Orders
We reserve the right to refuse any order you place with us through the Site or by any other method. In the event we make a change to or cancel an order, we will attempt to notify you by contacting you at the email address, phone number, and/or mailing address on file for you. If you place an order with us, your order will also be governed by the Order Terms and Conditions below.
6. Password and Account Security
You may create your own account on the Site by completing the registration process. In doing so, you must provide us with accurate and complete registration information and update us if this information changes.
If you create an account, we will assign you, or allow you to select, a password. You must keep your password confidential, and you may not permit any other person to use your password or your account for any purpose. You will be responsible for all use of your password, including, without limitation, any use by any authorized or unauthorized third party. You must notify us immediately if you believe your password may have been used by any unauthorized person or entity. For security purposes, we recommend you change your password often. Under no circumstance should you respond to a request for your password. Our employees will never ask for your password. You must notify us immediately if you receive such a request. We reserve the right to suspend or terminate your use of the Site if we believe that your password is being used without permission or otherwise in a manner that may disrupt the Site.
7. Consent for Communications
IF YOU PROVIDE YOUR TELEPHONE NUMBER TO US VIA THE SITE, YOU GIVE YOUR ELECTRONIC SIGNATURE AND CONSENT FOR US TO SEND YOU MARKETING CALLS/TEXT MESSAGES AT THAT NUMBER USING AN AUTODIALER AND/OR PRERECORDED MESSAGES. YOU ALSO ACKNOWLEDGE THAT YOUR CONSENT TO RECEIVE THESE MARKETING COMMUNICATIONS IS NOT REQUIRED TO PURCHASE ANY GOODS OR SERVICES. STANDARD MESSAGE AND DATA RATES MAY APPLY.
8. Whispered Brands’s Intellectual Property
All images, text, sound, photos, custom graphics, button icons, the collection and compilation and assembly thereof, and the overall “look and feel” and distinctiveness of the Site constitute trade dress and are either the property of Whispered Brands or used on this Site with permission. The absence on the Site of our name or logo does not constitute a waiver of our trademark or other intellectual property rights relating to such name or logo. All other product names, company names, marks, logos, and symbols appearing on the Site may be the trademarks and the property of their respective owners.
You acknowledge and agree that Content and services available on the Site are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws and are owned or licensed by Whispered Brands. Except as expressly authorized by Whispered Brands, either in these Terms or elsewhere, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from the Site or Content. Without waiving any of the foregoing rights, you may print or download information from the Site for your own personal, non-commercial home use, provided that you keep intact all copyright and other proprietary notices. Systematic retrieval of information from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from Whispered Brands is prohibited.
9. Digital Millennium Copyright Act Notice
If you believe that any material on the Site infringes your copyright rights, please contact our designated agent for Digital Millennium Copyright Act notices at:
Whispered Brands
425 Washington ST #269
Claremont NH 03743
Email address: concerns@whisperedbrands.com
Phone number: 1-877-994-4773
In your notice, please include:
Your physical or electronic signature;
Identification of the copyrighted work you claim to have been infringed, or, if there are multiple copyrighted works, a list of such works;
Identification of the material that you claim to be infringing, and where the material is located on the Site;
Your address, telephone number, and email address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by you or the law; and
A statement, under penalty of perjury, that the information in your notice is accurate.
If the notice is submitted by someone else on your behalf, the notice must also contain a statement that, under penalty of perjury, the person submitting the notice is authorized to act on your behalf.
10. Submissions
We may let you submit material to us or to third parties: for example, you may be able to upload a photo, send us messages, provide a testimonial, or post a review about our products. In these Terms, we use “Submissions” to refer to any material of any kind that you submit to us or third parties through the Site or in connection an order, including text, files, images, photos, video, sounds, and musical or literary works.
We are not responsible for the content of Submissions provided by you or any other user. We do not necessarily endorse any opinion contained in such material. We make no warranties or representations, express or implied, about Submissions, including as to their legality or accuracy.
We reserve the right, in our sole discretion, to refuse, remove, or edit any of your Submissions, or to restrict, suspend, or terminate your access to all or any part of the Site, and we may do this with or without giving you any prior notice.
We may link Submissions or parts of Submissions to other material, including material submitted by other users or created by us or third parties. We may use Submissions for our internal business purposes, for example, to examine trends or categories or to promote, market, or advertise our products. You acknowledge that we may use your Submission for any and all purposes, including for marketing and advertising, and that we may commercially benefit from use of your Submissions without any compensation to you.
Each time you make a Submission, you represent and warrant as follows:
You own your Submission or have the right to submit it, and in submitting it you will not be infringing any rights of any third party, including intellectual property rights (such as copyright or trademark), privacy or publicity rights, rights of confidentiality, or rights under contract.
You have the right to submit any logo, trademark, or other graphic identifying a business or organization contained in your Submission.
Your Submission is not illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, and does not encourage conduct that would be considered a criminal offense, and does not give rise to civil liability, violate any law, or otherwise be deemed inappropriate.
Your Submission does not advertise any product or service or solicit any business.
Your Submission does not identify any individual (including by way of name, address, picture, or video) under the age of 18 and if your Submission identifies any individual over the age of 18, you have that person’s consent to being identified in exactly that way in your Submission.
You are not impersonating any other person.
You will not collect usernames and/or email addresses of others for the purpose of sending unsolicited email.
You will not engage in criminal or tortious activity, including fraud, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or attempt to impersonate another user or person.
You will not engage in any automated use of our systems, such as using scripts to alter our Content.
You will not, without authorization, access, tamper with, or use non-public areas of the Site, our computer systems, or the technical delivery systems of our service providers.
Except as necessary to maintain your own computer security by use of commercial-off-the-shelf anti-virus or anti-malware products, you will not attempt to probe, scan, or test the vulnerability of the Site or any other component of our system or network or breach any security or authentication measures.
We are entitled to identify you to third parties who claim that their rights have been infringed by your Submission.
Submissions are not considered to be confidential. You agree not to make any Submission in which you have any expectation of privacy. We do not claim any ownership rights in Submissions; however, by making a Submission you hereby grant us an irrevocable, perpetual, fully sub-licensable, non-exclusive, royalty-free, worldwide license to use, telecast, copy, perform, display, edit, distribute, reproduce, modify, adapt, and otherwise exploit the Submission, or any portion thereof, and any ideas, concepts, or know how contained therein, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner (including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes) and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such Submission, and to grant and authorize sublicenses of the foregoing without any payment of money or any other form of consideration to you or to any third party. You represent and warrant that you own or otherwise control the rights to your Submission. You agree to indemnify us and our Affiliates (as defined below) for all claims arising from or in connection with any claims to any rights in your Submission or any damages arising from your Submission.
11. Disclaimers & Limitation of Liability
YOU USE THE SITE AND CONTENT AT YOUR OWN RISK. THE SITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Whispered Brands AND ITS AFFILIATES, DISTRIBUTORS, SERVICE PROVIDERS, VENDORS, AND LICENSEES, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, MANAGERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARENTS, SUBSIDIARIES, CORPORATE AFFILIATES, AGENTS, AND LICENSORS (REFERRED TO COLLECTIVELY AS “AFFILIATES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE AND CONTENT (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT).
IN PARTICULAR, Whispered Brands AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE AVAILABILITY, QUANTITY, ACCURACY, OR COMPLETENESS OF CONTENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Whispered Brands AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (D) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE; OR (F) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SITE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Whispered Brands NOR ITS AFFILIATES WILL BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO USE OF THE SITE OR CONTENT.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent Whispered Brands may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Whispered Brands’s liability will be the minimum permitted under such law.
12. Indemnity
You agree to defend, indemnify, and hold Whispered Brands, our Affiliates, third-party service providers, employees, contractors, agents, officers, and directors harmless from any and all liabilities, claims, demands, suits, investigations, losses, judgments, costs, and expenses (including reasonable attorneys’ fees and costs) that arise out of or are related to your violation or alleged violation of these Terms or use of the Site or Content.
13. Dispute Resolution
Any controversy, claim, or dispute arising out of or related to these Terms, Site, Content, or your order including, but not limited to, alleged violations of state or federal statutory or common law rights or duties (a “Dispute”) shall be solely and exclusively resolved according to the procedures set forth in this paragraph. If the parties are unable to resolve any Dispute through informal means, either party may initiate binding arbitration of such Dispute by sending notice demanding arbitration to the other party. The demand for arbitration shall be made within a reasonable time after the Dispute has arisen, but in no event shall it be made more than one year from when the aggrieved party knew or should have known of the controversy, claim, or facts forming the basis of the Dispute. The arbitration shall be initiated and conducted according to American Arbitration Association rules and procedures for consumer arbitration (if you are a consumer) or commercial arbitration (if you are a business) (the “Arbitration Rules”). The arbitration shall be conducted in San Diego County, California before a single neutral arbitrator appointed in accordance with the Arbitration Rules with the option to appeal the arbitrator’s decision to an Optional Appellate Arbitration in accordance with the Arbitration Rules. The arbitrator shall not have the power to award punitive damages against any party. To the fullest extent permitted by applicable law, arbitration costs and fees shall be divided equally between the parties. To the fullest extent permitted by applicable law, attorneys’ fees shall be borne by each party independently and no party shall be liable for the attorneys’ fees of the other party. Notwithstanding the foregoing, if the arbitrator determines that a filed Dispute is frivolous, the arbitrator, applying applicable law, may award the prevailing party its attorneys’ fees and costs. No Disputes may be arbitrated on a class or representative basis and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. BY AGREEING TO THESE TERMS, EACH PARTY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO JOIN CLAIMS OR DISPUTES WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION, CLASS ARBITRATION, OR SIMILAR PROCEDURAL DEVICE; WAIVES ANY RIGHT IT MAY HAVE TO PRESENT ITS CLAIM OR DISPUTE IN A COURT OF LAW; AND WAIVES ANY RIGHT TO BRING A DISPUTE MORE THAN ONE YEAR FROM WHEN IT KNEW OR SHOULD HAVE KNOWN OF THE CONTROVERSY, CLAIM, OR FACTS FORMING THE BASIS OF THE DISPUTE. Judgment on the award rendered by the arbitrator(s), if any, may be entered for enforcement purposes in any court having jurisdiction thereof.
Any matters submitted to a court for resolution shall be submitted to the state or federal courts of San Diego County, California and all parties agree to the personal jurisdiction thereof.
14. Privacy & Security
Our Privacy Policy is incorporated into these Terms. You acknowledge that the requesting URLs of the machine originating the request and the time of the request may be logged for access statistics and security purposes and agree that your use of this Site constitutes consent to such monitoring. Whispered Brands maintains exclusive control of access and right of access to this Site. You understand and agree that we reserve the right to revoke your access at any time without notice or cause of action for any reason whatsoever.
15. Links
The Site may contain links to sites or be accessed by links from sites that are owned and operated by independent third parties to which these Terms do not apply. We provide links as a convenience and the inclusion of the link does not imply that Whispered Brands endorses or accepts any responsibility for the content on those sites. Whispered Brands is not responsible for content including but not limited to claims, representations, warranties, offers, illustrations, names, or endorsements on any other sites. Further, Whispered Brands is not, directly or indirectly, implying any approval, association, sponsorship, endorsement, or affiliation with the linked site, unless specifically stated therein. Your linking to any other off-site pages or other sites is at your own risk. We recommend that you review any terms of use statement and privacy policy before using any other linked site, including social media sites.
16. Notice to California Residents
Under California Civil Code Section 1789.3, California residents are entitled to the following information: The provider of the Site is Whispered Brands, 425 Washington ST #269, Claremont NH 03743. To file a complaint regarding the Site or to receive further information about the Site, please contact us.
17. Order Terms & Conditions
These Order Terms & Conditions apply to all orders placed with Whispered Brands, regardless of originating channel (e.g., website, phone, mail) unless the customer has signed a separate purchase agreement with Whispered Brands, in which case the terms of the separate purchase agreement would apply.
Whispered Brands reserves the right to cancel any order at any time including after shipment. Whispered Brands reserves the right to collect from customers the value of any amount(s) received unjustly due to errors or omissions on the Site, in other marketing materials, from products shipped in error, or otherwise. Prices are subject to change without notice. Promotional offers may not be combined with any other offers.
You agree that the offer and sale of goods purchased from Whispered Brands takes place in, and will be governed by the laws of, the State of New Hampshire. All goods purchased from Whispered Brands are F.O.B. at our fulfillment center. Title to goods passes to you at the time of delivery by the fulfillment center to a common carrier.
We collect sales tax in accordance with applicable law. If an order is shipped internationally, you are responsible for customs and import duties of the destination country.
We do not sell products for purchase by children and do not knowingly sell our products to individuals under the age of 18.
If your order is defective, you may return the unused portion of your order and we will either replace it or give you a refund, at our election. To receive a replacement or refund, you must request the replacement/refund by contacting customer service within thirty (30) days from order delivery. Please contact customer service prior to returning the defective product so that we can arrange for the return.
18. Contact Information
If you have any questions, complaints, or claims, please contact us at:
Whispered Brands
425 Washington ST #269
Claremont NH 03743
Email address: concerns@whisperedbrands.com
Phone number: 1-877-994-4773