TERMS OF USE

Important – Read Carefully

Welcome to WHISPERFRESH, a site located at www.whisperfresh.com (Web Site). WHISPERFRESH is a time-saving multi-website portal tool that allows you to purchase products on our website, and/or multiple non-affiliated sites such as Amazon. By using or visiting this Web Site (collectively, including all content available through the Whisperfresh.com domain name, the “Site”), you signify your consent to both these Terms of Use (the “Terms of Use”) and the WHISPERFRESH Privacy Policy (“Privacy Policy”), which are incorporated herein by reference. If you do not agree to any of these terms, then please do not use the WHISPERFRESH Site. The Terms of Use is a binding agreement between WHISPERFRESH and you.

WHISPERFRESH reserves the right, in its discretion, to update or revise this Agreement. Although we may attempt to notify you when major changes are made to these Terms of Use, you should periodically review the most up-to-date version. Your continued use of the Site constitutes your consent to such changes. Additionally, by submitting a query to WHISPERFRESH’s online forms and search fields, you reiterate your agreement to abide by the Terms of Use. You also understand and agree that if you use the Site after the date on which the Terms of Use has been changed, WHISPERFRESH will treat your use as acceptance of the updated Terms of Use or additional terms. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.

Intellectual Property

The text, data, content, organization, images, graphics, design, software (including the underlying source and object codes), digital conversion and any other materials, such as trademarks, logos, and trade names, included in or related to the Site are our property or the property of our content suppliers or clients or used under a license and are protected under applicable copyright, trademark, patent and other proprietary rights (including but not limited to intellectual property). The collection, arrangement and assembly of all content on the Site is subject to copyright as a “collective work” under the United States Copyright laws and we own a copyright in the selection, coordination, arrangement and enhancement of such content. The copying, redistribution, use or publication by you of any such matters or any part of the Site, except as allowed under these Terms of Use, is strictly prohibited and may violate copyright, trademark, patent and other laws. Except as specifically permitted on the Site, you may not modify, remove, delete, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any content. You do not acquire ownership rights to any content, document or other materials viewed through the Site. The posting of information or materials on the Site does not constitute a waiver of any right in such information and materials.

Using the WHISPERFRESH Services

In order to access some features of the Site, you may have to create an account. When creating an account, you agree to provide accurate and complete information. You are solely responsible for the activity that occurs on your account. You agree to keep your password confidential. You may not share your password or permit anyone else to use your account. You must notify WHISPERFRESH immediately of any breach of security or unauthorized use of your account. You agree to never use another’s account without permission from WHISPERFRESH. Your right to use the Site is not transferable. Any password or right given to you to obtain information or documents or to purchase products or services is not transferable. WHISPERFRESH is not liable for any loss that you may incur as a result of someone else using your account, either with or without your knowledge.

Third Party Sites

This Site may link you to other sites on the internet (“Linked Sites”) including payment portals such as PayPal and Amazon. The Linked Sites are not under WHISPERFRESH’s control, and WHISPERFRESH is not responsible for the contents of any Linked Sites, including without limitation the accuracy, copyright compliance, legality, or decency of the Linked Sites or any links contained therein. These Linked Sites are maintained by persons over whom WHISPERFRESH exercises no control. These links are provided for your convenience, and do not imply endorsement of the Linked Sites by WHISPERFRESH or any association with its operators. All rules, policies (including privacy policies) and operating procedures will apply to you while on such sites. We are not responsible for information provided to you by any merchants. We and the merchants are independent contractors and neither party has the authority to make any representations or commitments on behalf of the other. Accordingly, we encourage you to be aware when you leave the WHISPERFRESH Site and to read the terms and conditions and privacy policy of each other web site that you visit. You are solely responsible for failure to deliver payment for items purchased by you or failure to deliver items purchased by you and product liability issues related thereto.

How you may use our materials

The content of this Site is protected by copyright under both United States and foreign laws. You may download and view a single copy of the materials found on the Site for informational purposes only, provided that any copy that you make of the material must bear any copyright, trademark or other proprietary notice located on the Site which pertain to the material being copied. Except as authorized in this paragraph, you are not being granted a license under any copyright, trademark, patent or other intellectual property right in the material or the products, services, processes or technology described therein. All such rights are retained by WHISPERFRESH or any third party owner of such rights. You may not create framed links or deep links to the Site without express written permission from WHISPERFRESH.

Except as specifically permitted or authorized on the Site, no areas of this Site may be used by you for any commercial purposes. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “scripts,” “webcrawlers,” or “offline readers,” that accesses the Site in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period using a conventional on-line web browser. You agree not to collect or harvest any personally identifiable information, including account names, from the Site, nor to use the communications systems provided by the Site (e.g. comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Site with respect to their user submissions without consent. You agree that you will not use any device, software or routine that interferes with the proper working of the Site nor shall you attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. While WHISPERFRESH may not currently have a fixed upper limit on the number of transmissions you may send or receive through the services, such fixed upper limits may be set by WHISPERFRESH at any time, at its sole discretion.

How you may use our marks

WHISPERFRESH, our logo, and all related design marks and slogans are the trademarks or service marks of WHISPERFRESH or its subsidiaries or affiliates. You are not authorized to use any WHISPERFRESH name or mark in any advertising, publicity, or any other commercial manner without the prior written consent of WHISPERFRESH.

No unlawful or prohibited use

You agree not to use the Site or services offered on the Site for any purpose that is unlawful or prohibited by this Agreement. You may not use the Site or services in any manner that could damage, disable, overburden, or impair

this Site or interfere with any other party’s use of the Site or services. You may not seek to obtain any materials or information through the Site by any means not intentionally made available or provided for through the Site.

The Site may contain communications services such as bulletin boards, chat rooms, communities, electronic mail postings, and other public forums. If WHISPERFRESH makes such forums available to you, you agree to post messages only if they are relevant to the intended subject matter of the forum. You agree that you will not: (1) post any incomplete, false, or inaccurate biographical information or information which is not your own; (2) delete or revise any material posted by any other person or entity; (3) post messages that are inappropriate, unlawful, threatening, obscene, vulgar, pornographic, profane, indecent, defamatory, libelous, abusive, or a violation of the legal rights (including without limitation privacy and publicity) of others; (4) violate the copyright, trademark, or other intellectual property rights of any other person or entity; (5) upload any files containing viruses, corrupted files, or any other component that may be harmful to the operation of another’s computer; (6) improperly assume or claim the identity, characteristics, or qualifications of another person or post anything using a user name other than the one assigned to you; (7) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content submitted through the service; (8) conduct or forward surveys, contests, pyramid schemes, or chain letters; (9) except as otherwise authorized, use the Site for commercial purposes, or post messages that contain advertising or are intended to solicit others to buy or sell services or to make donations; (10) harvest or otherwise collect information about others, including without limitation email addresses, without their consent; (11) post messages for the purpose of spamming; (12) attempt to gain access to any portion of this Site, any computer, server, account, network, software, or hardware associated with this Site, from which you are restricted; (13) violate any applicable laws or regulations; (14) harm minors in any way.

WHISPERFRESH is not obligated to monitor the communication services contained on the Site. However, WHISPERFRESH may, at its sole discretion, edit, decline to post, or remove any information or materials or any portion thereof.

Any materials you post through the communication services on the Site may not be private communications, and you acknowledge that these may be read by others without your knowledge. Because WHISPERFRESH does not endorse or control the content found in these services, IT MAKES NO WARRANTIES AND SPECIFICALLY DISCLAIMS ALL LIABILITY WITH REGARD TO THE ACCURACY OR RELIABILITY OF ANY SUCH CONTENT. The views expressed through postings to the communications services do not necessarily reflect those of WHISPERFRESH.
Anti-Spam Policy

While we encourage you to refer friends, family, colleagues, and others to use the Site, you may do so only through methods that are consistent with the terms and conditions of your own internet service provider as well as prevailing standards of acceptable internet use and behavior. Except as otherwise specifically permitted, you may not use the Site, name, trademarks, or other intellectual property of WHISPERFRESH in conjunction with sending of unsolicited email, or cause to be used WHISPERFRESH ’s equipment, network connectivity or other resources to originate, deliver, relay, or otherwise transmit unsolicited emailed messages. You may not engage in any of these prohibited activities by using the service of any other provider, third-party agent, remailing service, or address forwarding service, in such a way that WHISPERFRESH’s network addresses or services are in any way identified as being associated with the sending of unsolicited mail. Incidents of “spamming” or similar inappropriate behavior should be reported to us.

Notification and Procedure for Making Claims of Copyright Infringement

It is WHISPERFRESH’s policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers. You may notify WHISPERFRESH if your work has been copied in a way that you believe constitutes copyright infringement. In compliance with Title 17, United States Code, Section 512(c)(2), WHISPERFRESH has designated a Copyright Agent to receive any such notification. The complete details of providing such notification to WHISPERFRESH’s Copyright Agent are located on our Web Site.

How we may use information you provide to us

Any feedback, data, answers, reviews questions, opinions, advice, statement, recommendation, comments, suggestions, ideas, or the like (“Posts”) which you send to WHISPERFRESH will be treated as non-confidential and nonproprietary and you agree that any such information you choose to provide may be reproduced, used, and distributed by WHISPERFRESH for any purpose without restriction. You are solely responsible for your Posts.

WHISPERFRESH may collect and store information about the web pages you view and the data you enter in online forms and search fields. Although WHISPERFRESH does not attempt to analyze web usage data to determine the identity of any user, some information collected may be personally identifiable. WHISPERFRESH may also aggregate and analyze the information it collects to improve its service and to prepare reports about aggregate web usage and shopping habits.For a full discussion of how we treat your personally identifiable information, please see our Privacy Policy.

License to WHISPERFRESH

You shall solely be responsible for your own user submissions and the consequences of posting and publishing them. In connection with the user submissions, you affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize WHISPERFRESH to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all user submissions to enable inclusion and use of the user submissions in the manner contemplated by the Site and these Terms of Service. In addition, you are granting WHISPERFRESH a perpetual, royalty-free, irrevocable, nonexclusive, transferable, fully paid, and fully sublicensable worldwide right and license to publish such content, and to store, translate, distribute, copy, display, perform, modify or otherwise use the content for any purpose whatsoever, including, but not limited to marketing or advertising materials, and to exercise all copyright and rights of publicity over the material displayed in the Posts, in any existing or future media, now known or later developed. You also waive any “moral rights” or rights of attribution or integrity in such content. You also grant WHISPERFRESH, its affiliates and sublicensees the right to use your screen name, login name or any identifying information that you submit with your Posts. You agree that this license includes a right for WHISPERFRESH to make such content available to other companies, organizations or individuals with whom WHISPERFRESH has relationships for the provision of syndicated services, and to use such content in connection with the provisions of those services. You understand that WHISPERFRESH , in performing the required technical steps to provide services to its users, may (a) transmit or distribute your content over various public networks and in various media; and (b) make such changes to your content as are necessary to conform and adapt that content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit WHISPERFRESH to take those actions. No compensation will be paid for WHISPERFRESH’s use of the materials you post.

Endorsements

All product and service marks contained herein that are not WHISPERFRESH marks are the trademarks of their respective owners. References that we make to any names, marks, products or services of third parties or hypertext links to third party sites or information do not necessarily constitute or imply our endorsement, sponsorship, or recommendation of the third party, information, product, or service.
Disclaimer of Warranties/Limitation of Liability

ALL MATERIALS, INFORMATION, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THIS SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WHISPERFRESH DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WHISPERFRESH MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, OR ACCURACY OF THE INFORMATION, PRODUCTS, OR SERVICES CONTAINED IN OR OBTAINED THROUGH THE SITE FOR ANY PURPOSE. YOUR USE OF THIS SITE IS SOLELY AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES; THESE EXCLUSIONS MAY NOT APPLY TO YOU.

No claim may be made against WHISPERFRESH unless suit is filed thereon within one (1) year after the event giving rise to the claim.

IN NO EVENT SHALL WHISPERFRESH BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, USE, OR DATA WHETHER BROUGHT IN CONTRACT OR TORT, ARISING OUT OF OR CONNECTED WITH THE SITE OR THE USE, RELIANCE UPON, OR PERFORMANCE OF ANY MATERIAL CONTAINED IN OR ACCESSED FROM THE SITE.

The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies. If any action is necessary to enforce or interpret the terms of this Agreement, WHISPERFRESH , if determined to be the prevailing party in accordance with applicable case law in Kentucky shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements from you in addition to any other relief to which WHISPERFRESH shall be entitled.

IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR THE ASSOCIATED SERVICES OR PRODUCTS, YOUR SOLE REMEDY IS TO CEASE USING THEM.

The Site is operated from a location in the State of Kentucky, United States of America. We make no representation

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that materials found at our Sites are appropriate or available for use in other locations. If you access our Site from other locations, you are responsible for compliance with local laws.
A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings concerning this Agreement.

Indemnity

You agree to defend, indemnify, and hold harmless WHISPERFRESH and its employees, agents, directors, officers, and shareholders from and against all liabilities, claims, damages, and expenses (including without limitation reasonable attorney’s fees and costs) arising out of your use of the services, your breach or alleged breach of this Agreement, and your breach or alleged breach of the intellectual property or proprietary or other rights of third parties.

Termination

WHISPERFRESH reserves the right to terminate your access to the Site or to any or all of the services at any time without notice for any reason whatsoever.

General

You agree that: (1) the WHISPERFRESH Site shall be deemed solely based in Kentucky; and (2) the WHISPERFRESH Site shall be deemed a passive Site that does not give rise to personal jurisdiction over WHISPERFRESH, either specific or general, in jurisdictions other than Kentucky. These Terms of Use shall be governed by the substantive laws of the State of Kentucky without regard to its conflict of laws principles. Any claim or dispute between you and WHISPERFRESH that arises in whole or in part from the Site shall be decided exclusively by a court of competent jurisdiction located in Hamilton County, Kentucky. These Terms of Use, together with the Privacy Policy and any other legal notices published by WHISPERFRESH on the Site, shall constitute the entire Agreement between you and WHISPERFRESH concerning the Site. If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and WHISPERFRESH’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.