WHISBEAR APPLICATION TERMS OF SERVICE

This Terms of Service Agreement (hereinafter referred to as “the Agreement”) specifies the conditions for using the Whisbear Mobile Application (hereinafter referred to as “the Application”). By registering or otherwise using the Application in any way, the User (hereinafter referred to as “the User”, “they”, “you”) accepts this Agreement and the Privacy Policy, which shall constitute an integral part of these Terms of Service. The services and functionalities provided through the Application shall be provided and performed by Whisbear Sp. z o.o., located in Warsaw 02-372 at Opaczewska 42/27, registered in the Register of Entrepreneurs kept by the District Court for the Capital City of Warsaw in Warsaw, 12th Commercial Division, under KRS (National Court Register) number 0000555169, with NIP (taxpayer identification number) 7010481536 and REGON (business ID number) 36137404, with a share capital of PLN 8,800 (hereinafter referred to as “Whisbear”).

Each individual wishing to use the Application shall read and accept the Terms of Service. These Terms of Service are provided free of charge and prior to the conclusion of the Agreement (in a dedicated tab in the Application), as well as upon the User’s request, in a way which enables the User to obtain, copy and record the content of the Terms of Service by means of the ICT system they are using. If the User does not accept the provisions of these Terms of Service, they may not use or access the Services.

The Application has been created to manage E-zzy the Sloth and the Child Life Events Calendar from infancy to the second year of life. Details of the Application’s functionalities are available in the Application’s dedicated tabs.

The terms used in these Terms of Service shall have the following meanings:

Account

a service provided by electronic means; a modifiable part of the Application individually assigned to the User; the Account shall enable the use of other Services

Agreement

an agreement concluded between Whisbear and the User, the subject matter of which is the use of the Application and Services by the User, and the general terms of which shall be prescribed in these Terms of Service

Application

the Whisbear Application, which provides functionalities for managing a calendar for a child’s life events and, when connected with E-zzy the Sloth, manages the toy, which it connects with via a Bluetooth Smart module, and which also allows the User to review the device’s statistical data

Consumer

a natural person who is acting for purposes outside their trade, business or profession

Content

any kind of material, particularly instructions, tips and advice concerning the care and upbringing of infants and children up to 2 years of age, provided by Whisbear through the Application

CRYsensor

a feature of the Application which allows E-zzy the Sloth to detect a baby’s crying and automatically turns on a soothing noise

E-zzy the Sloth

a toy produced by Whisbear, equipped with a Bluetooth Smart module, with a Humming feature; the toy is designed to make falling asleep easier for infants and children

Humming

one of E-zzy the Sloth’s features, which can also be managed through the Application’s features

Privacy Policy

the document which governs the security of protecting the privacy and processing of a User’s personal data; the Privacy Policy, available here, shall constitute an appendix to and an integral part of these Terms of Service

Service/Services

services rendered by Whisbear by electronic means in the form of the Application functionalities, in particular the following features: Humming, CRYsensor, Calendar, Statistics

Statistics

information automatically generated by the Application, providing data on the use of Humming or CRYsensor features

User

any natural person with full legal capacity who uses the Application, pursuant to these Terms of Service

1. PRELIMINARY PROVISIONS

1.1. No provision of these Terms of Service shall be interpreted in a way limiting Consumer rights pursuant to the current provisions of law.

1.2. Any communications between the User and Whisbear shall be carried out by electronic means via email or through the Services, regardless of whether Whisbear provides notifications in the Application or communicates with the User via email. On the basis of these terms of service, (a) the User agrees for the communication between Whisbear and the User to be carried out by electronic means, (b) the User declares that they are aware of and approve of the fact that any conditions, agreements, notifications, disclosures, or other correspondence transmitted via electronic means shall have an effect tantamount to being in written form as printed documents. This does not affect the User’s legal (statutory) rights.

1.3. The User is prohibited from providing content which is considered unlawful.

1.4. The Application may include advertisements for which Whisbear receives remuneration on a commercial basis.

2. CONTENT

2.1. While using the Application, the User shall take into consideration that any information contained in the Application is of a general nature and does not constitute medical content provided specifically for the User, nor does it replace medical content.

2.2. Before using the Application, the User should ensure (by consulting with a medical doctor, if possible) that it is safe for the User’s child, their health and development stage. In case of any doubts concerning the safety of using the Application or its effect on a child’s health, the User shall immediately stop using the Application.

2.3. All content of the Application is purely informative in nature and does not replace or constitute an alternative to a professional medical consultation regarding caring for and raising infants and children.

2.4. In particular, health care shall not be provided through the Application; nor shall medical services be provided, nor health-promoting activities, or research or educational exercises connected with health care and health promotion, be carried out.

2.5. If the User believes that a particular part of the Content may constitute such an activity, they should immediately inform Whisbear about this. Upon receiving such a notification, Whisbear shall immediately remove the Content or change it accordingly.

2.6. In consequence, the use of the Application by the User, in particular their acceptance of the Terms of Service, shall not form between Whisbear and the User any kind of doctor (or other entity providing health care services)-patient relationship.

2.7. By using the Application, the User hereby declares and guarantees that:
2.7.1. before complying with the Content, on each occasion, they shall verify its safety and appropriateness for the current health of their child
2.7.2. when using the Application, they shall not act or make a decision, or fail to do so, on the basis of the Content in its entirety or partially;
2.7.3. they shall on each occasion consult a relevant medical doctor in order to verify the applicability of the Content for their context, considering any recommendations or contraindications.

2.8. In no case shall the User rely solely on the Content; any issues concerning the User’s child, their organism or medical condition, should be consulted on each occasion by the User with a qualified doctor, who is the best and only source of such information.

2.9. The User shall not ignore or avoid a diagnosis or any other form of medical help from a qualified doctor specifically due to Content they obtained through the Application.

2.10. If the User notices that their child’s health has deteriorated or may be deteriorating, they should immediately consult a qualified medical doctor.

2.11. The above shall also apply to Statistics.

3. APPLICATION

3.1. The Application can be downloaded via AppStore (for iOS) or Google Play (for Android).

3.2. The Application is free for owners of E-zzy the Sloth.

3.3. Users who do not own an E-zzy the Sloth toy shall be charged for the Application. The amount to be charged shall be specified on AppStore or Google Play.

3.4. In order to install the Application, to update its functionalities and to benefit from them, the minimum technical requirements are a mobile device with iOS 9.0 or higher (for the Application version downloaded from AppStore) or Android 4.4 or higher (for the Application version downloaded from Google Play), which enables the correct installation of the Application, and an active email account for the User.

3.5. The Application may be used without an Internet connection, with the proviso that in order to install the Application and to update the Services, the User’s mobile device must have access to the Internet.

3.6. For the User, the use of the Application may involve costs of data transmission resulting from agreements with telecommunications operators (or other Internet providers) concluded by the User and relating to this data transmission (downloading the Application, launching and using the Application).

3.7. The User may receive notifications reminding them to update the Application, or about new features. This is a functionality that can be deactivated.

3.8. The Application may provide the User with notifications concerning the Services, e.g. reminders about events in the Calendar. The User can modify or switch off this feature at any time.

3.9. Whisbear has the right to occasionally modify elements and functionalities of the Services, in particular in order to improve them and to maintain User satisfaction.

4. ACCOUNT

4.1. In order to use the Services, the User must have an active Account. For this purpose, they should register through the Application, using the interactive registration form to provide an email address and password. By sending a request to create an Account, the User declares and guarantees that: (a) the details provided by them are true, accurate and up-to-date and they will remain so throughout the entire period of their use of the Services, (b) their use of the Services is and will be compliant with the law applicable in their country, (c) they are aware that Whisbear does not provide medical services, (d) they are aware of and agree with the fact that Whisbear does not guarantee technical support and, therefore, Whisbear shall not be bound to provide any support, including technical support, for the Services. Upon confirmation of the Account registration through a confirmation link sent to the provided email address, an Agreement for an unlimited period of time shall be concluded between Whisbear and the User, provided that the conditions for using the Services, as required by the Terms of Service, have been met. Users’ personal data shall be processed according to the Privacy Policy.

4.2. Deleting the Account terminates the Agreement.

4.3. The User may delete their Account at any time, without giving a reason and with immediate effect, by sending Whisbear a message with the request to delete the Account. This message may be sent via email, with the proviso that it is sent from the same email address that was used to register the Account. Deletion of the Account shall be tantamount to termination of the Agreement. By deleting the Account, the User also irrevocably deletes the Account’s settings, Statistics, and the data in the interactive features indicated in the Application.

4.4. The User shall be liable for what happens within and through their Account. Therefore, they may not make it available to a third party, and the User shall be responsible for the confidentiality of both the login and the password. Should the User notice that an unauthorised person is using or has used the Account, they should immediately notify Whisbear of this. The Account shall be non-transferable.

4.5. The User undertakes that, by means of the Services, they shall not: (a) undertake any actions which may hinder or impede the functioning of the Services, or use the Services in a manner onerous to other Users, (b) act to the disadvantage of other Users, Whisbear, or other parties, (c) breach the terms of the Agreement, the Terms of Service, or local legal regulations, including local, regional and national laws, or other legal acts, regulations or directives, (d) treat the Content contrary to the restrictions stipulated in section 2 of the Terms of Service, including that they shall not treat the Content as professional medical care for children.

4.6. The User’s culpable infringement of the Agreement, the Terms of Service, or the rights to the Services, may cause Whisbear to react in one of the following ways: (a) address a warning to the User, (b) block access to the Account, (c) terminate the Agreement with immediate effect and delete the Account, (d) prevent the User from setting up the Account again. 4.7. Whisbear may delete the Account and terminate the Agreement according to the mandatory provisions of law.

5. INTELLECTUAL PROPERTY RIGHTS

5.1. The Services, Application and Content and their components are subject to copyright and/or other intellectual property rights – in particular, the copyrights owned by Whisbear. Whisbear is the sole owner of any and all intellectual property rights for the Application and the Services.

5.2. Subject to the relevant provisions of these Terms of Service, Whisbear grants the User a personal, nonexclusive, non-transferable, revocable, territorially unlimited licence for using the Services for their own, personal, non-commercial purposes and solely within the scope of the Application’s functionalities, without the rights for sub-licensing. No authorisation, whether indicated expressly in the Terms of Service or implied, shall transfer any intellectual property rights belonging to Whisbear to the User or to any third party. The licence is granted to the User upon accepting these Terms of Service and remains in force as long as the User holds their Account.

5.3. The licence and other rights granted to the User by Whisbear shall be subject to the following restrictions: (a) the User may not reproduce, disseminate, lease, dispose of or otherwise redistribute, whether directly or indirectly, for charge or free-of-charge, otherwise than through Whisbear, any elements of the Services and/or the Application, (b) the User may not modify, compile or reformulate the Services, nor may they use or develop the intellectual property belonging to Whisbear to create their own products or services, (c) the User may not use the intellectual property owned by Whisbear for illegal purposes or to Whisbear’s disadvantage. Even if the User uses the Services or the Application within the scope of permitted use, they may not remove the copyright notices in the Application, or other proprietary markings. The same applies to copies.

6. PAYMENT

6.1. In order to use the Services, Users who do not own an E-zzy the Sloth shall be charged the amount indicated in the Application.

6.2. The prices and costs within the Application are always gross prices and include all taxes, including VAT.

6.3. Whisbear does not include in the Application tenders in digital form pursuant to the regulations of the Civil Code. In particular, the provisions concerning the tendering of digital offers do not apply.

7. THIRD-PARTY LINKS AND ADVERTISEMENTS

7.1. The Application may contain links to third-party websites – in particular, websites focused on parenthood and child development, and the Application may display advertisements for third-party services or products (hereinafter referred to as “Third-Party Links and Advertisements”). Third-Party Links and Advertisements are not subject to Whisbear’s supervision and, therefore, Whisbear shall not be held liable for any Third-Party Links and Advertisements or their content. Whisbear provides access to Third-Party Links and Advertisements only for the User’s convenience and, therefore, Whisbear shall not verify, approve, monitor, or provide guarantees in relation to the Third-Party Links and Advertisements. The use of Third-Party Links and Advertisements is carried out at the User’s own risk. It is therefore recommended that the User applies adequate safety measures and due care when using them.

7.2. The User should also consider that, from the moment they click on a Third-Party Link or Advertisement, they are subject to the Terms of Service and Privacy Policy relevant for the clicked Third-Party Link or Advertisement.

8. COMPLAINTS

8.1. The User shall have the right to file a complaint concerning the operation of the Application and/or Services. A complaint should include, at a minimum, details that allow Whisbear to identify the User as the one making the complaint, as well as justified concerns and comments relating to the Application and/or Services. Letters of complaint should be sent via email to app.whisbear@whisbear.com or by mail to Whisbear, Pływacka 3, 02-633, Warszawa/Warsaw, Polska/Poland. If there is a need to obtain more information about the complaint, Whisbear shall contact the User.

8.2. Whisbear shall acknowledge and respond to the letter of complaint within 14 (fourteen) days. The User shall be informed about the decision concerning the complaint by way of a letter sent to the address provided in the complaint.

9. DISCLAIMERS

9.1. The Services shall be provided on an “as-is” basis and Whisbear shall expressly disclaim any and all warranties and conditions not stipulated herein or by the provisions of the law, whether express, implied or statutory. Whisbear makes no guarantee that the Application will meet the User’s expectations, or that it will be available without interruption, or that it will be error-free and reliable. If an applicable law requires any warranties with respect to the provided Services, the duration of all such warranties shall be limited to 90 days from the date of registering the Account.

9.2. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

10. LIMITATION OF LIABILITY

10.1. Subject to paragraph 10.3, and to the extent permitted by law, in no event shall Whisbear be held liable to the User or third parties for any lost profits, lost data, or any other damage resulting from the use of the Application by the User, or their not being able to use the Application. In particular, Whisbear shall not be held liable for damages resulting from the User using the Services in a way that contradicts the normal use, intended use, or the concept of the Application, or against the warnings specified in section 2 herein. Access to the Application and use of the Application shall be at the User’s own discretion and risk. Whisbear shall not be liable for the health of the User’s child, as specified in section 2 herein. Moreover, Whisbear’s liability for any damages resulting from the use of the Application may not exceed 1,000 EUR. This provision does not apply to citizens of the European Union.

10.2. Subject to paragraph 10.3, and to the extent permitted by law, the User hereby permanently releases Whisbear (including Whisbear’s CEOs, board members, employees, agents, legal inheritors and assignees) from liability in connection with any past, present or future disputes, claims, rights, responsibilities, duties or causes for action, including personal injuries and material loss, which are a direct or indirect result of the Application or are directly or indirectly connected with the Application, including any interactions with other users of the Application or third parties connected with Third-Party Links or Advertisements. To this extent, the User hereby waives any rights to pursue such claims. IF YOU ARE A RESIDENT OF CALIFORNIA, YOU 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.” This provision does not apply to Consumers from the European Union.

10.3. CERTAIN JURISDICTIONS DO NOT ALLOW THIS LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. In such a case, the following provisions related to liability shall be accordingly applicable to the User: Whisbear shall not be held liable for any damage resulting from: (a) the User’s infringement of the provisions of these Terms of Service, (b) the User’s intentional disclosure of the login or password to their Account to third parties, (c) the manner in which the User uses the Application or Services, which Whisbear cannot influence, (d) actions against the provisions of section 2 herein, (e) a short-term lack of access or disrupted access to the Application resulting from the necessity to perform reparatory, maintenance or improvement work on the Application, with the proviso that none of the above-mentioned disclaimers of liability shall limit the principle that the Users being Consumers are protected by such regulations applicable in their country of habitual residence, which cannot be derogated from by agreement.

11. AMENDMENT TO THE TERMS OF SERVICE

11.1. Whisbear may amend these Terms of Service due to important legal reasons (such as the amendment of a generally applicable law, or changes to the organisational form of Whisbear), or for technical reasons (the modernisation of the Application or Services, changes to the way the Application and/or Services function). Users shall be notified of any amendments to the Terms of Service, along with the reasons for the amendments, via email sent to the address through which the User’s Account was registered, 7 (seven) days before the new Terms of Service enter into force. In that period, the User shall accept the new Terms of Service, or refuse to accept them and terminate the Agreement with immediate effect. If the User other than a Consumer does not terminate the Agreement within the period specified above, it shall be assumed that they have accepted the amended version of the Terms of Service. 11.2. Any orders placed before the amendments to the Terms of Service enter into force shall be processed according to the original wording of the Terms of Service.

12. DISPUTE RESOLUTION AND ARBITRATION

12.1. In the case of Users other than EU Consumers, THESE TERMS OF SERVICE IMPOSE THE OBLIGATION TO SETTLE ANY DISPUTES THROUGH ARBITRATION RATHER THAN TRIAL BY JURY OR CLASS ACTION, AND THEY ALSO LIMIT THE LEGAL MEANS AVAILABLE FOR THESE USERS WHEN A DISPUTE ARISES. Any disputes arising from the use of the Application and relevant to the Application shall be finally settled on the basis of the Arbitration Terms of the Court of Arbitration at the Polish Chamber of Commerce in Warsaw in force on the day of referral for arbitration. The proceedings shall be conducted in English by one or more arbitrators appointed according to these Arbitration Terms. The Parties, their representatives, any other participants, and the arbitrators shall be subject to confidentiality regarding the arbitration’s existence, the subject matter and the result. The arbitrator’s decision shall be final and binding. These Terms of Service stipulate the settlement of disputes by means of arbitration only. Even if the governing law states otherwise, the User who is not an EU Consumer waives their right to participate in a class action.

12.2. The User who is also an EU Consumer shall have the option to pursue alternative dispute resolution – in particular, mediation, settlement or arbitration. A list of institutions to which the Consumer may apply for dispute arbitration (ADR) can be found here: http://ec.europa.eu/consumers/solving_consumer_disputes/non-judicial_redress/national-out-of-court-bodies/index_en.htm. The Consumer may also choose an out-of-court means of dealing with complaints and pursuing claims by submitting their complaint through the EU online ODR platform available here: http://ec.europa.eu/consumers/odr/. If the Consumer does not wish to pursue either ADR or ODR options, any disputes relevant to the Terms of Service and the Agreement shall be settled by a court of general jurisdiction.

13. SPECIFIC PROVISIONS

13.1. Without prejudice to the other provisions stipulated herein, if the User is not a Consumer, they are subject to the following specific provisions: (1) Whisbear shall not be liable for wilful damages to the User, and Whisbear’s liability shall be limited to the User’s actual damage and costs, (2) the rights and obligations resulting from the Agreement and these Terms of Service shall be governed by Polish law, (3) disputes between Whisbear and the User shall be settled exclusively by the competent court for Whisbear’s registered office, (4) if any of the resolutions of these Terms of Service are contradictory or inaccurate, Whisbear reserves the right to the binding interpretation of the Terms of Service.

14. GENERAL

14.1. Contact details and methods of communicating with Whisbear: (a) by email to: app.whisbear@whisbear.com; (b) by mail to the correspondence address: Pływacka 3, 02-633 Warszawa/Warsaw, Polska/Poland.

14.2. The governing law for liabilities resulting from the Agreements shall be Polish law, with the proviso that this choice may not result in the Consumer being deprived of the protection resulting from the mandatory provisions of law applicable in the Consumer’s country of habitual residence.

14.3. If any provision of these Terms of Service proves invalid in part or entirely, then the other provisions shall remain effective, and the remaining part of the Terms of Service shall be interpreted in such a manner that its legal effect and economic implications correspond to the greatest possible extent to those of the invalid provisions.

14.4. Should Whisbear fail to exercise any of their rights resulting from these Terms of Service, this shall not mean that they have waived these rights.

14.5. The headings of the individual sections above are for reference purposes only and shall not be legally binding.

14.6. The word “including” shall mean “including without limitation”.

14.7. These terms of service enter into force as of 24 April 2018.