The following terms and conditions of use (the “Terms of Use”) constitute an agreement between you (collectively, “User”, “you” or “your”) and Green Coast Ventures Inc. dba Whistle!, Whistle!Ride and Whistle! Ride Co. (“Whistle!”, “we”, “our”, or “us”). These Terms of Use govern your use of and access to https://www.whistle.ca/ (the “Site”), our mobile ride hailing applications Whistle!Ride and Whistle!Drive (the “App”), and all services made available through the Site and the App (the “Services”).
You should carefully review these Terms of Use and, if you do not agree with them, you are not permitted to access or use the Site, App or Services and you should exit the Site, cease using the App and Services immediately and, if you have downloaded or installed the App on to your device, uninstall the App from such device immediately.
By accessing the Site, App or Services, creating an Account (as defined below), clicking “signup”, submitting information to us or downloading, or by installing or using the App and using the services made available therein, you accept these Terms of Use. If you do not accept these Terms of Use you must not submit information to or register an Account with us, access the Site or download, install or use any of the App or Services.
Supplemental terms may apply to the certain Services, and such supplemental terms will be disclosed to you in connection with the applicable Services. In addition, if you apply to be a driver through the App, you may be required to enter into a separate agreement with Whistle! as a condition of being able to use the App to connect with other Users for the purpose of providing them with ridesharing transportation services. Supplemental terms, and any agreements between Whistle! and individual drivers, shall prevail over these Terms of Use in the event of a conflict.
WHISTLE! SERVICES
Whistle! is a licensed transportation network services provider that provides access to a technology pltform that enables individuals seeking ridesharing transportation services (“Riders”) to use the App to request such service from independent drivers (“Drivers”), be matched with available Drivers, pay for the service, and to allow Drivers to accept such requests using the App. Riders request transportation by using “Whistle!Ride”, and individuals can apply to be Drivers and be connected with Riders by using “Whistle!Drive”.
CHANGES TO THIS AGREEMENT
We reserve the right, acting in our sole discretion and at any time, to revise these Terms of Use. We will give you notice of such revisions by posting the revisions to the Site and the App. Changes are effective immediately upon posting. It is your responsibility to ensure that you are aware of the current Terms of Use when you access or use the Site, App and/or Services. Your continued use of the Site, App or Services after any such changes come into effect shall constitute your acceptance of such changes.
For avoidance of doubt, you acknowledge that your acceptance of these Terms of Use is supported by good and valuable consideration including, but not limited to, the limited license granted in these Terms of Use, and you hereby acknowledge the receipt and sufficiency of such consideration.
PRIVACY
By accessing or using the Site, App and/or Services, or otherwise accepting or agreeing to these Terms of Use, consent to the collection, use and disclosure of your personal information by Whistle! as set out in the Privacy Policy https://www.whistle.ca/privacy which may be amended from time to time and which is incorporated into this Terms of Use. The Privacy Policy sets out the types of personal information that we collect through your use of the Site, App and Services, and the purposes for such collection, use and disclosure.
USER ACCOUNTS
Eligibility and Registration
Access to and use of the App, certain portions of the Site and/or Services is available only to Users who have a registered an account (the “Account”) through the Site or App and who have agreed to be bound by these Terms of Use. If you do not have a valid registered Account, you are not authorized to use or access the App and may not be authorized to use or access certain portions of the Site and/or Services. Whistle! retains the sole discretion to approve applications for registration.
When you register for or update your Account, access the Site or App or use the Services, you may be required to provide us with certain personal information, which may include your name, telephone number, and e-mail address. This information will be retained and used by Whistle! in accordance with its Privacy Policy. You agree that all information provided by you to Whistle! via your Account will be accurate and complete and you are responsible for updating it in your Account.
Downloading the App and Compatible Devices
The Site and the Services operate on certain operating systems and are available through third party application stores on mobile devices. Currently, the App is available to be downloaded onto mobile devices with iOS and Android operating systems from the Apple App Store and Google Play. You acknowledge and agree that Whistle! is not responsible for ensuring that your mobile device’s software is compatible with the Site or the App, or that you can use or access the Site, App or Services through your mobile device. In addition, the terms and conditions of the applicable app store from which you are downloading the App will also apply. If you want to use the App to request or receive transportation from drivers, you should download Whistle!Ride. If you want to apply to provide ridesharing transportation services to Users as a driver, you should download Whistle!Drive. It is your responsibility to ensure you download the correct App for your device. Whistle! is not liable if you download the wrong version of the App for your mobile device. We reserve the right to terminate your use of the App should you use the App with an incompatible or unauthorized device.
You agree that Whistle! may enforce this Agreement directly, as may the owners of the operating systems on which the App runs, such as Apple and Google, who will also have the right to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
Electronic Communications
You consent to receive electronic communications from Whistle! either in the form of email, push notification or in-App notification to your mobile device or other forms of electronic messages sent to you at the addresses listed on your Account or by communications posted on or notifications through the Site or the App. You acknowledge and agree that any electronic communication shall satisfy any legal requirement that such communication or notification be in writing. Please see our Privacy Policy https://www.whistle.ca/privacy for information on how to unsubscribe from certain promotional and marketing electronic communications from Whistle!.
Login Information and Passwords
Unless you use Facebook when registering for or updating an Account, you will be required to provide us with certain personal information, which includes your mobile phone number. In providing Whistle! with your mobile phone number, you give Whistle! consent to send you a text message with a one time password. You will then use that one time password to sign up for an Account. After registering for an account, you will use your mobile phone number to login to your Account and the App. You agree that Whistle! may text you new one time passwords for log in purposes. Standard text messaging charges applied by your mobile phone carrier will apply, and you are solely responsible for payment of such charges.
You are responsible for protecting the confidentiality of each password, and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your Account. You are not permitted to share your Account or login information or to allow any other person to access to your Account. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your password(s), or any other security breach involving your Account or the Site, App and/or Services at ride@whistle.ca. We are not responsible for any unauthorized access of your Account or passwords even if you have advised us as such. You are responsible for all activities that occur under your Account, whether or not such activities have been authorized by you.
Accessing Your Account
Each time that you log into and access an Account, you represent and warrant that:
you are the person who registered for the Account;
all of the personal information registered in connection with the Account is current, complete and accurate;
you are accessing the Site and using the App and/or Services solely for lawful purposes and in strict compliance with these Terms of Use;
you are accessing the Site, App and/or Services solely for your own personal, non-commercial purposes, except where drivers are accessing it for the limited purposes related to their provision of driving services;
you are not, and are not acting on behalf of, any competitor or prospective competitor of Whistle!; and
you are not accessing the Site, App and/or Services for any illegal purpose or to advertise, solicit or communicate with other users for any commercial purpose.
CONTENT OWNERSHIP, USE AND INTELLECTUAL PROPER RIGHTS
Laws and Regulations
Your access to and use of the Site, App, Services and Content (defined below) is subject to all applicable international, federal, provincial, state and local laws and regulations. You agree to comply with all applicable laws in relation to your access to and use of the Site, App, Services and Content.
Limited End User License
Subject to your strict compliance with these Terms of Use, Whistle! grants you a limited, revocable, non-exclusive, personal, non-transferable license, without the right to sublicense, to access and use the (i) Site, (ii) App, (iii) Services, and (iv) content which you have downloaded, installed or subscribed for (“Content”), as applicable, on a single computer, mobile device or media platform, including applications downloaded directly from a legitimate marketplace (the “License”). You shall not acquire any ownership rights in any of the Site, App, Services or Content, with the exception of any User Generated Content (as defined below). The term of your License commences on the date of your acceptance of these Terms of Use and shall end on the earlier date of your or Whistle!’s suspension or termination of your Account. Your License shall terminate immediately, automatically and without notice if you attempt to circumvent any technical protection measures used in connection with the Site, App, Services or Content or you otherwise breach these Terms of Use.
Data Collection and Ownership
Whistle! may collect data which is associated with your computer, mobile device, and/or media system platform and which includes, but is not limited to: your IP address, web browser type, mobile operating system, application installations, mobile device carrier and manufacturer, mobile device identifier, the sections of the Site and App that you visit, the date and time of your use of the Site and App and your in-media time, your actions within the Site and App, Site and App crashes and other system activity, the URLs you visited before and after using the Site, and certain content that you download from the Site and App (“Usage Data”). You agree that your Usage Data will be owned by Whistle! without providing additional compensation to you or any other person and without any liability whatsoever.
User Generated Content
You grant Whistle! a perpetual, unrestricted, unlimited, non-exclusive, irrevocable license to fully exploit all information, data, text, graphics, photos, videos or other materials that you generate in connection with your use of the Site, App or Services (“User Generated Content” or “UGC”), without notice or compensation to you of any kind. You hereby waive all moral rights in your UGC in favour of Whistle! and its successors and assigns. The license granted to Whistle! and the above waiver of moral rights will survive any termination of these Terms of Use.
Suggestions and Feedback
You agree that any and all creative ideas, notes, drawings, suggestions or other information that you may provide to Whistle!, whether solicited or unsolicited, as a User or otherwise (“Feedback”), is the property of Whistle! or our content partners and third party licensors, including all intellectual property rights therein, without providing any compensation to you or any other person and without any liability whatsoever. You hereby irrevocably assign all intellectual property rights throughout the world and in perpetuity in and to the Feedback to Whistle! and irrevocably waive all moral rights you may have therein. You may submit Feedback by emailing us at: ride@whistle.ca
Trademarks, Logos and Branding
The trademarks, logos, signs, symbols, images and brands (“Marks”) displayed on the Site and the App are the property of Whistle! and our other partners or service providers where named. You are prohibited from using any Marks for any purpose including, but not limited to, use as metatags on other pages or sites on the Internet without the written permission of Whistle! or such third party which may own the Marks, which permission may be withheld in the sole discretion of the owner of the relevant Marks. All Content available on or through the Site, App or Services is protected by intellectual property laws. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or using any Content for commercial purposes.
Violation of Third Party Rights
You represent and warrant that all content of any kind that is uploaded to or transmitted through the Site, App or Services will not violate or infringe upon the rights of any third party including, but not limited to, any trade secret, copyright, trade-mark, trade dress, patent, privacy, publicity, confidentiality or other personal or proprietary rights of any such third parties. Whistle! may terminate the privileges of any User who utilizes the Site, App, Services or Content to unlawfully publish, transmit, link or otherwise provide access to copyrighted material without a valid license, the express consent of the copyright owner or a fair dealing or fair use exemption (or equivalent under applicable law) and the User shall have the burden of establishing the same to the satisfaction of Whistle!, acting in its sole discretion.
UNACCEPTABLE USE
You must not use the Site, App, Services or Content, or assist or encourage any other party, to engage in, amongst other things, any of the following prohibited activities in relation to the Site, App, Services and/or Content:
copying, framing or mirroring any part of the Site, App, Services or Content;
using, copying, modifying, creating a derivative work of, reverse engineering, decompiling or otherwise attempting to extract the source code of the software underlying the Site, App or Services or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to Whistle!;
publishing, transmitting, distributing or storing content, material, information or data that: (i) is illegal, obscene, defamatory, threatening, harassing, abusive, or hateful or that advocates violence; (ii) is harmful to or interferes with the Site, App or Services or any third party’s networks, equipment, applications, services or websites (e.g., viruses, worms, Trojan horses, etc.); (iii) infringes, dilutes, misappropriates or otherwise violates any privacy, intellectual property, publicity or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets or other proprietary information (including unauthorized use of domain names); or (iv) is fraudulent or contains false, deceptive or misleading statements, claims or representations (such as “phishing”);
attempting to disrupt, degrade, impair or violate the integrity or security of the Site, App or Services or the computers, services, Accounts or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of Whistle! internet protocol space;
distributing, or disclosing any part of the Site, App, Services or Content in any medium, including without limitation by any automated “scraping”, other than through any technology or means provided or authorized by the Site, App or Services;
using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Site or App in a manner that sends more request messages to Whistle! than a human can reasonably produce in the same period of time by using a conventional web browser;
taking any action that imposes, or may impose, an unreasonable or disproportionately large load on our infrastructure, as determined by Whistle! in its sole and absolute discretion;
collecting or harvesting any information relating to an identifiable individual, including account names and information about Users of the Site, App, Services, or Content, from the Site or Services;
using the Site, App, Services or Content for any commercial solicitation purposes;
accessing any Content on the Site, App or Services through any technology or means other than those provided or authorized by the Site, App or Services;
submitting to the Site, App, or Services or to Whistle! any information that may be protected from disclosure by applicable law;
bypassing the measures we may use to prevent or restrict access to the Site, App, Services or Content, including, without limitation, features that prevent or restrict use or copying of any Content or enforce limitations on use of the Site, App, or Services or the Content therein;
violating any applicable law, or encouraging any conduct that could constitute a criminal offense or give rise to civil liability;
removing, modifying or obscuring any copyright, trademark or other proprietary rights notices contained in or on the Site, App or Services; or
executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Whistle!’s servers or any data not intended for you.
Users can report any conduct or content that they believe is unacceptable use to Whistle! at ride@whistle.ca
THIRD PARTY LINKS
The Site, App, Services or Content may contain links to websites, products and other resources operated by third parties other than Whistle! (“Linked Sites”). Such links are provided solely as a convenience to you. Whistle! does not control such Linked Sites, and is not responsible for the content, products, services or information offered by any third parties. The inclusion of links to the Linked Sites on the Site, App or Services does not imply any endorsement or any website or the content, products or services offered, advertised, endorsed or promoted by any third party, or of any company or person. If you decide to access any Linked Sites or acquire any third party products or services, you do so entirely at your own risk, and you may be subject to the terms and conditions and the privacy policies imposed by such third parties.
FARES, CHARGES AND PAYMENTS
Whistle! is regulated by the Board (defined below). Fares, charges and payments are monitored and established by the Board. You can find information about the pricing structure mandated by the Board on its publicly accessible website.
You understand that if you request or use ridesharing transportation services from a Driver using the App, you may be charged. These charges will include fares as well as any other applicable fees, tolls, surcharges and taxes, plus any tips to the Driver that a Rider decides to provide (if any).
In accordance with licensing requirements set out by the Board, when Whistle! presents estimated fares, that fare is an estimate only and the passenger User will be charged based on actual travel time, distance or both. Where the fare is presented as up front and agrees to pay that fare, the User will be charged that fare for that specific trip, subject to other conditions of the license.
All charges will be due immediately. Unless you have credit on your Account, you agree to pay for all charges using the credit card that you provided when you registered for an Account. You may have credit in your Account as a result of coupons provided by Whistle!. The credit associated with those coupons is only valid for use on the App and is not transferable or redeemable for cash, except as may be required by law. If the cost of your ride exceeds the applicable credit, we will charge your credit card for the outstanding cost of the trip. Additional restrictions on coupons may apply as communicated to you in a relevant promotion or by clicking on the relevant coupon within the App.
You are responsible for ensuring that the credit card linked to your Account is valid and has sufficient credit. All payments are non-refundable, except where required by applicable law.
Fares are subject to certain minimum rates, as determined by the Board from time to time. Whistle! reserves the right to determine and modify fares and fees associated with the App and its Services. Pricing may vary based on the User’s location, time of the requested ride, availability of driver Users and other factors. In addition, Whistle! reserves the right to increase fares in certain geographical areas during times of high demand or peak periods. You are responsible for all charges connected with your Account using the App, regardless or your awareness of the applicable fare, fees, tolls, surcharges and/or taxes.
You may cancel a ride that you have requested through the App, but may be charged a cancellation fee in certain circumstances. You may also be charged a cancellation fee if you fail to show up after requesting a ride.
You may decide, but are not required, to tip a Driver through the App. Any tips will be provided entirely to the applicable Driver. Drivers must not accept payment by cash or by any method or system of payment that is separate from the App.
As explained in our Privacy Policy, Whistle! uses a third-party payment processor to link your credit card to the App. This means that the processing of your payment will be subject to the terms and conditions of our payment processor. Whistle! will only receive certain transaction details from the payment processor to enable it to confirm that payment has been made in connection with your use of the App, and to provide you with an electronic receipt for all transportation arranged using the App. You understand and agree that you are responsible for managing and updating the billing and payment information associated with your Account to ensure that it is current and accurate.
If a Driver reports that you have materially damaged or soiled the Driver’s vehicle, you agree to pay the Driver a repair fee of up to CDN $250, depending on the extent of the damage (as determined by Whistle! in our sole discretion), towards vehicle repair or cleaning. Whistle! reserves the right (but is not required) to facilitate payment of the repair fee to the Driver using the credit card connected to your Account. If Whistle! facilitates the payment, we reserve the right (but are not obligated) to verify or otherwise require documentation of damage prior to processing the repair fee.
DISCLAIMERS
Whistle! is not responsible for the conduct of any User of the Site, App or its Services. By using the Site, Ap and/or Services, you agree to accept such risks and agree that Whistle! is not responsible for the acts or omissions of Users on the App or when involved in ridesharing transportation.
You acknowledge and understand that Whistle! does not provide transportation services and is not a transportation carrier. Whistle! connects Riders and Drivers using the App. The ridesharing transportation service itself is provided by the Drivers independently. While Whistle! assists Drivers in ensuring they have appropriate training, licensing and insurance for ride sharing, Drivers are responsible for their training, licensing and insurance. Any ridesharing transportation service provided by a Driver to a Rider is governed by a separate agreement between those Users.
Whistle! cannot guarantee or verify the identity of each User, and so Users should use common sense when using the App and arranging for ridesharing transportation services with Drivers. If you are connected with a Driver, you will be able to see the driver’s photograph, vehicle information, and geolocation as the vehicle approaches your pickup location. You are responsible for verifying the identity of the Driver before you get into the Driver’s vehicle.
It is each User’s responsibility to decide whether or not to offer or accept ridesharing transportation service from another User. Whistle! cannot ensure that a Driver or Rider will complete a scheduled trip.
Whistle! has no control over the quality or safety of the ridesharing transportation service that a Driver provides to a User.
Whistle! is not responsible for any personal belongings that you leave in a Driver’s vehicle.
You should be careful about what information you choose to share with other Users, and Whistle! encourages Users to use the in-App communication tool that enables Drivers and Riders to communicate with each other without sharing last names and phone numbers. Whistle! is not responsible for the use of any personal information that you disclose to other Users on the App or while participating in ridesharing transportation services.
Whistle! is not responsible for any charges, including data overage fees, that may be charged by your mobile device service provider as a result of your use of the Site or the App. You are responsible for monitoring your own data consumption, and any charges incurred by you as a result. You should check with your mobile device carrier to understand what data and messaging rates will apply when you access and use the Site and App through your mobile device.
Whistle! is licensed and regulated by the Board. These terms and conditions are subject to applicable law and the license, which control.
NO WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, THE SITE, APP, SERVICES AND ALL CONTENT ON THE SITE AND APP INCLUDING LINKED SITES ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, SUITABILITY OR ACCURACY. WHISTLE! DOES NOT WARRANT THAT THE SITE, APP, SERVICES OR CONTENT ARE SUITABLE FOR OR WILL MEET YOUR REQUIREMENTS, ARE FREE OF DEFECTS, THAT THE OPERATION OF THE SITE, APP OR SERVICES WILL BE FREE FROM INTERRUPTION OR ERROR-FREE, AND WHISTLE! DOES NOT WARRANT THAT ERRORS OR DEFECTS IN THE SITE, APP, SERVICES OR CONTENT WILL BE CORRECTED. FURTHER, WHISTLE! DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE SITE, APP, OR ANY LINKED SITE, INCLUDING ANY THIRD-PARTY ACTIVITIES, AND WHISTLE! SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY THROUGH THE SITE, APP, ANY LINKED SITE OR OTHERWISE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, WHISTLE! DOES NOT WARRANT, EITHER EXPRESS OR IMPLIED, ANY ACTIVITIES ENTERED INTO BY RIDERS OR DRIVERS, SUCH AS RIDE SHARING ACTIVITIES, ARE SUITABLE OR ERROR-FREE, AND WHISTLE! DOES NOT WARRANT THAT IT IS RESPONSIBLE FOR THE SAFETY OF USERS, OR INSURE USERS FOR ANY LOSS, DAMAGE OR INJURY.
LIMITATION OF LIABILITY
Limitation of Liability for the Use of the Site, App, and Services
YOU AGREE THAT WHISTLE!, ITS AFFILIATES AND SUBSIDIARIES AND ANY OF THEIR RESPECTIVE OFFICES, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS WILL NOT BE LIABLE, WHETHER UNDER STATUTE OR IN CONTACT, TORT, STRICT LIABILITY, EQUITY OR UNDER ANY OTHER LEGAL THEORY, FOR ANY PERSONAL INJURY (INCLUDING PARALYSIS), PERSONAL PROPERTY DAMAGE, BREACH OF PRIVACY, LOSS, ACCIDENT OR DEATH OR ANY DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL LOSS OR DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, THE REPLACEMENT COST OF PERSONAL PROPERTY, THE COST OF PROCURING SUBSTITUTE SERVICE OR LOST OPPORTUNITY, REPUTATIONAL LOSS OR DATA CORRUPTION OR DATA LOSS) ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE, APP, SERVICES, CONTENT OR A LINKED SITE, OR FOR ANY DELAY OR INABILITY TO USE THE SITE, APP, SERVICES, CONTENT OR A LINKED SITE, OR ARISING OUT OF OR IN CONNECTION WITH THE RIDESHARING TRANSPORTATION SERVICES, HOWSOEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WHISTLE! IS MADE AWARE OF THE POSSIBILITY OF SUCH INJURY, LOSS, ACCIDENT, DEATH OR DAMAGES.
THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY VIRUSES, MALWARE OR MALICIOUS APP WHICH MAY INFECT A USER’S EQUIPMENT OR DEVICES, FAILURE OF THE APP AND/OR SERVICES TO BE COMPATIBLE WITH YOUR HARDWARE OR APP, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION OR INTERCONNECT LINES OR FIBER, OR OTHER CONNECTIVITY PROBLEMS, UNAUTHORIZED ACCESS OR UNAUTHORIZED DISCLOSURE OF PERSONAL INFORMATION OR DATA, THEFT, LOSS OF DATA, OPERATOR ERRORS, STRIKES OR OTHER LABOUR PROBLEMS OR ANY FORCE MAJEURE EVENT. WHISTLE! CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, ERROR FREE OR SECURE ACCESS TO THE SITE, APP OR SERVICES. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WHISTLE! BE LIABLE TO YOU FOR ANY AMOUNT THAT EXCEEDS THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO WHISTLE!.
Limitation of Liability for Services Arranged Through the App
YOU AGREE THAT WHISTLE! IS A TRANSPORTATION NETWORK SERVICES PROVIDER THAT CONNECTS RIDERS AND THIRD PARTY DRIVERS THROUGH THE APP TO FACILITATE THE PROVISION OF RIDESHARING TRANSPORTATION SERVICES BY INDEPENDENT DRIVERS. WHISTLE! DOES NOT ENDORSE OR CONTROL ANY DRIVERS OR THEIR SERVICES. WHILE THE APP MAY BE USED BY YOU TO REQUEST AND SCHEDULE RIDESHARING TRANSPORTATION WITH A THIRD PARTY DRIVER, AND IF A DRIVER MAY BE USED BY YOU TO ACCEPT A REQUEST FOR RIDESHARING TRANSPORTATION WITH A RIDER, YOU AGREE THAT WHISTLE! HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY RIDESHARING TRANSPORTATION OR OTHER SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS, INCLUDING DRIVERS, OTHER THAN AS EXPRESSLY SET FORTH IN THIS TERMS OF USE. ANY AND ALL CLAIMS REGARDING THE FAILURE, BREACH, LOSS OR BODILY INJURY OR DEATH ARISING FROM OR IN CONNECTION WITH A DRIVER’S ACTIVITIES OR SERVICES OFFERED THROUGH THE SITE OR APP ARE LIMITED TO CLAIMS AGAINST ANY AND ALL SUCH DRIVERS OR OTHER THIRD PARTY SERVICE PROVIDERS.
Cap on Liability
APPLICABLE LAWS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. HOWEVER, EVEN IF THIS IS THE CASE, IN NO EVENT SHALL THE TOTAL LIABILITY OF WHISTLE! FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EQUITY OR UNDER ANY OTHER LEGAL THEORY, RELATED TO YOUR USE OF, OR THE INABILITY TO USE, THE SITE, APP AND/OR SERVICES EXCEED THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO WHISTLE!.]
INDEMNITY
YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS WHISTLE! AND ITS AFFILIATES AND SUBSIDIARIES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ALL CLAIMS, LIABILITIES, ACTIONS AND CAUSES OF ACTION BROUGHT AGAINST AND ALL COSTS AND EXPENSES (INCLUDING LEGAL EXPENSES ON A FULL INDEMNITY BASIS AND ANY OTHER FEES AND EXPENSES INCURRED FOR INVESTIGATING OR DEFENDING ANY ACTION OR THREATENED ACTION, AS WELL AS SETTLEMENT COSTS) WHICH ANY OF THE INDEMNIFIED PARTIES MAY SUFFER OR INCUR ARISING FROM OR IN CONNECTION WITH: (I) YOUR USE OR MISUSE OF THE SITE, APP, SERVICES, CONTENT, ANY LINKED SITES OR THIRD PARTY ACTIVITIES; (II) YOUR PARTICIPATION IN RIDESHARING TRANSPORTATION SERVICES FACILITATED THROUGH THE APP; (III) YOUR BREACH OR ALLEGED BREACH OF ANY OF THESE TERMS OF USE; (IV) YOUR VIOLATION OR ALLEGED VIOLATION OF ANY APPLICABLE LAW (INCLUDING BUT NOT LIMITED TO THE MOTOR VEHICLE ACT AND ALL ASSOCIATED REGULATIONS, THE PASSENGER TRANSPORTATION ACT, THE LIQUOR CONTROL AND LICENSING ACT, AND THE CANNABIS CONTROL AND LICENSING ACT); (V) YOUR NEGLIGENCE OR WILFUL MISCONDUCT; (VI) YOUR INFRINGEMENT OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS; AND (VII) ANY OTHER ACTIVITIES IN CONNECTION WITH THE RIDESHARING TRANSPORTATION SERVICES.
WITHOUT DEROGATING FROM OR EXCUSING YOUR OBLIGATIONS UNDER THIS SECTION WE RESERVE THE RIGHT (AT YOUR EXPENSE), BUT ARE NOT UNDER ANY OBLIGATION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER WHICH IS SUBJECT TO AN INDEMNIFICATION BY YOU EVEN IF YOU CHOOSE TO DEFEND OR SETTLE IT. YOU AGREE NOT TO SETTLE ANY MATTER THAT IS SUBJECT TO AN INDEMNIFICATION BY YOU WITHOUT FIRST OBTAINING OUR EXPRESS APPROVAL.
DISPUTE RESOLUTION
You and Whistle! agree that any dispute, claim or controversy arising out of or relating to these Terms, any policy or guarantee referred to herein, or the breach, termination, enforcement, interpretation or the validity thereof, or the use of the Site, App, Services or Content (collectively, the “Disputes”) will be settled by final and binding arbitration, except that each party retains the right to (i) bring an individual action in the British Columbia Supreme Court, or the British Columbia Provincial Court (Small Claims Division) if the action is within the jurisdiction of that court and (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, confidential information or other intellectual property, proprietary, publicity or privacy rights. You acknowledge and agree that you and Whistle! are each irrevocably waiving the right to participate as a plaintiff or a class member in any purported class action or similar representative proceeding. Further, unless you and Whistle! expressly agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of class or representative proceeding. Except where otherwise expressly provided in these Terms of Use, all remedies of Whistle! hereunder shall be cumulative. This “Dispute Resolution” section shall survive any termination of these Terms of Use.
Any arbitration to be conducted pursuant to this “Dispute Resolution” section shall be conducted before a single arbitrator in accordance with the rules of the British Columbia International Commercial Arbitration Centre for Domestic Disputes. The seat of the arbitration shall be in Vancouver, British Columbia. You and Whistle! hereby irrevocably submit to the jurisdiction of the arbitrator in Vancouver, British Columbia and waive any defense in an arbitration based upon any claim that such party is not subject personally to the jurisdiction of such arbitrator, that such arbitration is brought in an inconvenient forum or that such venue is improper. The arbitral award shall be in writing and shall be final and binding on each of you and Whistle!. The award may include an award of costs, including reasonable attorneys’ fees and disbursements. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the parties or their assets. You acknowledge and agree that by agreeing to these Terms of Use you are waiving any right that you may have to a jury trial with respect to the resolution of any dispute under these Terms of Use.
VIOLATIONS OF THESE TERMS AND TERMINATION
Whistle! may monitor, terminate or suspend your Account or our Services at any time.
You acknowledge and agree that Whistle! may, acting in its sole discretion and without prior notice to you, terminate or suspend your ability to access each or all of the Site, App, or Services or any portions thereof, and cancel your Account for any reason including, without limitation: (i) if you violate or otherwise fail to strictly comply with any term or provision of these Terms of Use; (ii) if we have determined that your use has created or potentially created risk or legal exposure for Whistle!; or (iii) in response to requests by law enforcement or any other government agencies. In addition to the foregoing, Whistle! reserves the right to pursue all remedies available at law and in equity for violations of these Terms of Use. You acknowledge and agree that monetary damages may not be an adequate remedy for any violation of these Terms of Use by you and, without limiting any of Whistle!’s other remedies, you hereby consent to, and authorize Whistle! to obtain, an injunction or other equitable relief from any court of competent jurisdiction without the necessity of having to post any bond or other form of security.
These Terms of Use, as amended from time to time by Whistle!, shall remain effective until terminated by you or Whistle!. Upon termination of these Terms of Use for any reason, you must cease use of your Account, cease accessing the Site, App, Services and Content, delete the App from your mobile device and promptly delete, purge and destroy all electronic and other copies of any Content.
RELATIONSHIP BETWEEN DRIVERS AND WHISTLE!
As a Driver, Whistle! does not direct or control how you perform the ridesharing transportation services that you arrange with a Rider through the App. You are responsible for the performance of ridesharing transportation services, as well as the registration, operation, maintenance and insurance of your vehicle. You have the option to accept or decline a Rider’s request for ridesharing transportation services on the App. You are not restricted from providing ridesharing transportation services for other transportation network services providers, or engaging in any other consulting or employment.
If you are a Driver, you acknowledge and agree that your relationship with Whistle! is that of an independent contractor. Neither this Terms of Use nor any other supplemental agreement which you may enter into with Whistle! are intended to or have the effect of creating an agreement of employment or agency between Whistle! and you, and neither Whistle! nor you will act or omit to act in any manner by which it would bind or purport to bind the other to any obligation. You undertake not to represent yourself as an employee, agent or authorized representative of Whistle!.
GENERAL
Jurisdiction
This Site is operated from and Whistle! is located in the Province of British Columbia, Canada. Whistle! is licensed by the British Columbia Passenger Transportation Board (“Board”) and licensed under the Passenger Transportation Act, as amended. The App is intended to be used by Users within resort towns in British Columbia, or such other geographical areas in British Columbia as may be directed by the Board. By electing to access the Site, App, or Services from any jurisdiction outside of Canada, you accept full responsibility for ensuring that your use of the Site, App or Services is in compliance with all laws applicable within that other jurisdiction. Whistle! makes no representation that materials, products and services available on or through the Site or App are appropriate or available for use in jurisdictions outside of Canada. You are not permitted to access the Site, App, or Services from any jurisdiction in which the Content is illegal or accessing the Site, App, or Services is illegal. You may not use, export or re-export any materials, including any Content, from the Site, App or Services in violation of any applicable laws or regulations.
Waiver and Severability
The failure of Whistle! to enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. In the event that any provision of the Terms of Use shall, in whole or in part, be determined to be invalid, unenforceable or void by a court of competent jurisdiction, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in anyway the remainder of such provision or any other provision of the Terms.
Notices
Any notices or other communications permitted or required hereunder, including but not limited to modifications to these Terms of Use and/or any policy referred to herein, will be in writing and given by Whistle! (i) via email (in each case to the email address provided by you for your Account) or (ii) by posting to the Site or App. Notice delivered by email will be deemed to have been received on the date on which such notice is transmitted.
Governing Law
These Terms of Use and your legal relationship with Whistle! shall be governed by and construed in accordance with the laws of the Province of British Columbia, together with the federal laws of Canada applicable therein, without regard to its conflicts of laws principles. These Terms of Use shall not be governed by the United Nations Convention on Contracts for the Sale of Goods. The controlling language of these Terms of Use is English.
Assignment
You may not assign any of your rights or obligations hereunder, whether voluntarily or by operation of law except with the prior express written consent of Whistle!, which consent may be withheld in Whistle!’s sole discretion, and any attempted assignment in violation of the foregoing is void. Whistle! may assign any or all of its rights and obligations hereunder to an affiliate, subsidiary or a successor in title to the Site, App and/or the business and undertaking of Whistle!.
Enurement
These Terms of Use shall enure to the benefit of and be binding upon the parties and their respective heirs, executors, administrators, successors and permitted assigns.
Force Majeure
Whistle! will not be liable for, or be considered to be in breach of or default under these Terms of Use on account of, any delay or failure to perform as required by these Terms of Use as a result of events beyond the reasonable control of Whistle!, including without limiting the foregoing where the delay or failure is due to fires or fire related hazards, explosions, power outages or interruptions, brownouts, internet service provider failure or delay, cyberattacks, earthquakes, floods, spills, epidemics, acts of God, war or acts of war, acts of terrorism, riots, strikes, lockouts or other labour or contractor actions, acts of public authorities, or delays or defaults caused by common carriers, or other similar events which cannot reasonably be foreseen or provided against.
Entire Agreement
These Terms of Use, together with the Privacy Policy and any supplemental terms and conditions referred to below, constitute the entire agreement between the parties concerning the subject-matter hereof and supersede and replace any and all prior oral or written understandings or agreements between you and Whistle! regarding the Site, App, and the Services.
Survival
The provisions of these Terms of Use which require or contemplate performance after the expiration or termination of these Terms of Use shall remain enforceable notwithstanding such expiration or termination.
Questions and Complaints
Support is available by contacting Whistle! at ride@whistle.ca to receive feedback and to support you with any issues with the Terms of Use, Site, App or Services.
If you are dissatisfied with Whistle!’s response to any complaints you have made about the Site, App or Services, you can contact the Passenger Transportation Branch of the Ministry of Transportation and Infrastructure at the following email passengertransportationbr@gov.bc.ca
Last updated: December 30, 19