The effective date of these Chirpsy Terms of Service is January 20, 2012.
Chirpsy LLC, a Washington state Limited Liability Corporation, (hereinafter called CHIRPSY) and You (hereinafter called CUSTOMER), in consideration of the covenants contained herein and other good and valuable consideration, the parties hereby agree on this day as follows:
Your use of the Chirpsy services (the ‘SERVICES’), chirpsy.com, and other Chirpsy-branded websites (the ‘Chirpsy Site’) are governed by these Terms of Service and any related policies, operating rules, procedures or guidelines that CHIRPSY may make available from time to time (collectively, these ‘Terms’).
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN DO NOT ACCESS THE CHIRPSY SITE OR USE THE SERVICES. BY VIEWING OR USING ALL OR ANY PART OF THE SERVICES OR THE CHIRPSY SITE, OR DOWNLOADING ANY MATERIALS OR BY COMPLETING ANY REGISTRATION PROCESS, YOU AGREE TO BE BOUND BY ALL OF THESE TERMS.
We reserve the right to modify these Terms at any time by posting a notice on the Chirpsy Site, or by sending you a notice via email or postal mail. Your viewing or using all or any part of the Service or the Chirpsy Site constitutes your assent to such modifications. You shall be responsible for reviewing and becoming familiar with any such modifications. Such modifications are effective immediately upon first posting or notification. “You” are sometimes referred to in these Terms as the “CUSTOMER.”
The SERVICES shall commence and remain in force as agreed in these Terms and on the Chirpsy Site. If the CUSTOMER terminates the Services prior to the expiration date shown above, the CUSTOMER shall be liable for all fees incurred to the termination date.
The current SERVICES pricing is provided in this agreement or as otherwise displayed on the Chirpsy Site. All charges will be exclusive of value added (“VAT”), sales or other taxes, except as required by law. CUSTOMER shall pay all duties and foreign, federal, state, county, local income taxes, VAT, and other taxes, or amounts in lieu thereof, levied or based on the SERVICES or other products or documentation provided to CUSTOMER, exclusive of taxes based upon the net income of CHIRPSY. In the event any payments to be made by CUSTOMER are subject to applicable withholding tax that CUSTOMER is required to deduct from such payments, CUSTOMER shall promptly deliver to CHIRPSY receipts issued by appropriate government authorities for all such taxes withheld or paid by CUSTOMER and CUSTOMER shall fully and promptly cooperate with CHIRPSY to provide such information and records as CHIRPSY may require in connection with any application by CHIRPSY to obtain available tax credits. All quotes indicated and payable in U.S. Dollars.
CHIRPSY allows the CUSTOMER to start using the service after a payment instrument is authorized on the account and a subscription plan is selected. The subscription plan price is billed immediately to the CUSTOMER, and at that time, applicable taxes may be added. If additional content is requested and written for the CUSTOMER, an additional SERVICE fee is added to the total debt the CUSTOMER owes CHIRPSY. At the end of each billing period, any accrued debt is settled and at that time, applicable taxes may be added. CHIRPSY may change its fees at any time, or come to any other arrangement with any of its CUSTOMERS for the usage of the CHIRPSY SERVICES.
The CUSTOMER understands that CHIRPSY is intended to be used for creating micro-blogging content such as Twitter tweets.
In its sole discretion, CHIRPSY shall determine whether the CUSTOMER is eligible for a free trial of the SERVICE. Free trials are limited to one per person, and if we find that the CUSTOMER has created multiple free trial accounts, we reserve the right to suspend those accounts and take actions to prevent additional violations.
Should CUSTOMERS have any dispute as to fees associated with their account, please contact us at Chirpsy Support <firstname.lastname@example.org> within 90 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to the CUSTOMERS CHIRPSY account, but in no event shall there be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or credits.
If any of the SERVICES requires the CUSTOMER to open an account, the CUSTOMER must complete the registration process by providing CHIRPSY with current, complete and accurate information as prompted by the applicable registration form. The CUSTOMER must also choose a password. The CUSTOMER is solely responsible for maintaining the conﬁdentiality, safety and security of their password and account. The CUSTOMER is not authorized or permitted to share their password with any other party. Furthermore, the CUSTOMER is entirely responsible for any and all activities that occur under the account. The CUSTOMER agrees to notify CHIRPSY immediately of any unauthorized use of the account, loss or theft of their password, or any other breach of security. CHIRPSY will not be liable for any loss that the CUSTOMER may incur as a result of someone else using the password or account, either with or without their knowledge. However, the CUSTOMER could be held liable for losses incurred by CHIRPSY or another party due to someone else using their account or their password. The CUSTOMER may not use anyone else’s account at any time, without the permission of the account holder. Any attempt to circumvent any access controls or to otherwise gain access to any other portion of the CHIRPSY website or SERVICES, other than what the CUSTOMER is authorized to access, is a material breach of these terms and will result in immediately termination of the CUSTOMER’s account and password, any may result in further civil actions or criminal enforcement proceedings.
As a condition of use of the SERVICES, the CUSTOMER hereby agrees to the following restrictions:
CHIRPSY reserves the right to make changes, including but not limited to its operating procedures, accessibility, terminal equipment, type and location of system, and other applicable administration/improvements.
The CUSTOMER is fully responsible for the contents of transmissions through the SERVICES. CHIRPSY reserves the right to take any action with respect to the SERVICES that CHIRPSY deems necessary or appropriate in its sole discretion if CHIRPSY believes the CUSTOMER or CUSTOMER’s information may create liability for CHIRPSY, compromise or disrupt the SERVICES for the CUSTOMER or other using the SERVICES, or cause CHIRPSY to lose (in whole or in part) the SERVICES of CHIRPSY’ ISPs or other suppliers. The SERVICES make use of the Internet and email for the CUSTOMER to send and receive information. As a result, the CUSTOMER acknowledges and agrees that its conduct is subject to Internet network regulations, policies and procedures. The CUSTOMER must obtain and pay for all equipment and third-party SERVICES (e.g., Internet access, email accounts) independently required to access and use the SERVICES.
CHIRPSY will provide reasonable security provisions to insure that access to CUSTOMER’s computer-stored data ﬁles and/or programs are available only to CUSTOMER, or to persons authorized by CUSTOMER. CHIRPSY reserves the right to change security operation procedures to improve such protection. The CUSTOMER assumes full responsibility for selection and use of any protection codes or passwords as may be required or permitted by the service. CHIRPSY also reserves the right at all times to disclose any information to third parties, as CHIRPSY deems necessary to satisfy any applicable law, regulation, legal process or governmental request.
Except for CHIRPSY’s breach of Section 9, IN NO EVENT SHALL CHIRPSY, ITS LICENSORS, SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY CUSTOMER OR ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF REVENUES OR PROFITS, LOSS OF DATA OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS (INCLUDING WITHOUT LIMITATION, LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, WRONG DELIVERIES, SERVICE INTERRUPTIONS, PERFORMANCE OR FAILURE OF THE INTERNET, OR DELETION OR FAILURE TO SAVE DELIVERIES), EVEN IF CHIRPSY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE. THE SERVICES ARE PROVIDED ‘AS IS’ AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE WITH RESPECT TO THE SERVICES OR ANY OTHER PRODUCT, DOCUMENTATION OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. CHIRPSY FURTHER EXPRESSLY DISCLAIMS GUARANTEE OF CONTINUED AVAILABILITY OF THE SERVICE OR ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE TITLE OR NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO MARKETING LITERATURE OR COLLATERAL OR STATEMENTS REGARDING PERFORMANCE OF THE SERVICES BY CHIRPSY WHICH IS NOT CONTAINED IN THIS SECTION SHALL BE CONSIDERED TO BE A WARRANTY OR REPRESENTATION, SHOULD NOT BE RELIED UPON AND IS NOT BINDING UPON CHIRPSY.
In addition to the disclaimer set forth in section WARRANTY AND LIMITATION OF LIABILITY, CHIRPSY does not:
CHIRPSY’s liability in any and all other cases for any and all other causes shall, in the aggregate, be LIMITED TO THE AMOUNT ACTUALLY PAID BY THE CUSTOMER TO CHIRPSY HEREUNDER FOR THE SERVICES provided however, that (i) CHIRPSY may elect, in lieu of paying damages or granting offset, to correct errors or omissions within a reasonable time from notiﬁcation of such errors or omissions, and (ii) the CUSTOMER agrees that CHIRPSY shall not be liable to CUSTOMER for any expenses, claim, loss or damage unless the CUSTOMER provides CHIRPSY with written notice on any claimed errors or omissions within ten (10) days of the CUSTOMER’s receipt of the report giving rise to the claim.
The remedies above provided shall be the CUSTOMER’s only and exclusive remedies in connection with the SERVICES furnished here under to the CUSTOMER.
The limited warranty, exclusive remedies and limited liability set out herein are fundamental elements of the basis of the agreement between the CUSTOMER and CHIRPSY. The CUSTOMER acknowledges and agrees that CHIRPSY would not be able to provide the SERVICES at the rates charged without such limitations.
The CUSTOMER represents and covenants to CHIRPSY that:
The CUSTOMER agrees to indemnify and hold CHIRPSY and its agents harmless from any and all claims, losses, damages, judgments, penalties, ﬁnes, expenses and costs (including any attorney’s fees and expenses) brought against, suffered or incurred by CHIRPSY for (i) any claims brought by any recipient of a CUSTOMER transmission or other end user or customer of CUSTOMER, (ii) any claims arising out of or in connection with any claim arising out of the CUSTOMER’s use of the Services, CHIRPSY Properties and/or CHIRPSY Marks in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions (including but not limited to) email, and the Can-Spam Act, (iii) the delivery of any information, the infringement of any trademark or copyright, or (iv) any use by a third party of the CUSTOMER’s password or account.
Unless continuing for a period of ninety (90) consecutive days, or involving obligations of payment hereunder, no default, delay or failure to perform on the part of either party shall be considered a breach of the Agreement if such default, delay or failure to perform is shown to be due entirely to an event of force majeure, or to causes beyond the reasonable control of the defaulting party including without limitation, strikes, riots, civil disturbances, actions or inactions concerning governmental authorities, epidemics, war, embargoes, severe weather, ﬁre, earthquakes, acts of God or the public enemy or default of a common carrier, or interruptions of the Internet such as failure of a third party internet service provider or third party hosting provider, always provided that the party so relieved of its obligations shall take reasonable steps to prevent, correct or amend such act or event which renders such obligations impossible.
The CUSTOMER acknowledges and agrees that CHIRPSY or its licensors are the exclusive owners of all right, title and interest in and to the SERVICES, products or documentation supplied pursuant to the SERVICES, including without limitation, all intellectual property rights, copyrights, patents, trade secrets, trademarks and any other intellectual or industrial property rights whatsoever. The CUSTOMER shall not copy, make extracts from, create derivative works, translate or otherwise modify any of the products or the documentation (except as permitted above) provided by CHIRPSY as a component of the SERVICES or available from the CHIRPSY website. The provision of SERVICES by CHIRPSY does not convey any license by implication, estoppels, or otherwise, under any patent, copyright, trade secret, trademark or any other intellectual property right whatsoever.
CHIRPSY acknowledges and agrees that the CUSTOMER is the exclusive owner of information supplied to CHIRPSY pursuant to the SERVICES, including micro-blogging content such as Twitter tweets and @Replies. CHIRPSY also acknowledges and agrees that the CUSTOMER is the exclusive owner of the results gained from the SERVICES and will not share this information with third-parties without prior written consent from the CUSTOMER.
Any assignment of this agreement by the CUSTOMER without the prior written consent of CHIRPSY shall be void except, that the CUSTOMER may assign this agreement without CHIRPSY’s prior written consent to a 3rd party that purchases or otherwise acquires substantially all the assets of the CUSTOMER. The CUSTOMER’s insolvency, receivership, voluntary or involuntary bankruptcy, or the institution of proceedings thereof, or any assignment by The CUSTOMER for the beneﬁt of its creditors, will immediately terminate this agreement without notice.
CHIRPSY may terminate the Service provision to the CUSTOMER (i) on the tenth (10th) day after notice to the CUSTOMER, (ii) immediately, if the CUSTOMER uses the SERVICES for illegal, immoral, unauthorized or unlawful purposes or for purposes which, in the sole opinion of CHIRPSY, may affect the goodwill or reputation of CHIRPSY, or (iii) if the CUSTOMER is in default of payment and fails to remit payment within thirty ﬁve (35) days following the date of CHIRPSY’ invoice. Upon the occurrence of any of termination event for cause, the CUSTOMER’s access to the SERVICES shall be terminated immediately. CHIRPSY shall have no responsibility to notify any third party, including any third party providers of SERVICES, merchandise or information, of any suspension, restriction or termination of the CUSTOMER’s account. CHIRPSY shall have no obligation to maintain any messages or other content in the CUSTOMER’s account or forward any unread or unsent message to the CUSTOMER’s or any third party. Any termination of the CUSTOMER account shall not relieve the CUSTOMER from any amounts owing or any other liability accruing under this agreement prior to the time that such termination becomes effective.
Upon termination of this agreement and prior to date of termination, the CUSTOMER shall give CHIRPSY written instructions as to the disposition of the CUSTOMER’s information, programs, ﬁles, documents and other relative items. The CUSTOMER agrees to pay any and all related expenses incurred by CHIRPSY executing the CUSTOMER’s disposition instructions. If no disposition instructions are provided by the CUSTOMER, CHIRPSY may dispose of the CUSTOMER information at its discretion.
All written notices required under this agreement shall be emailed, hand delivered or deposited in the United States mail with postage prepaid thereon as registered or certiﬁed mail, with return receipt requested, addressed as follows:
To CUSTOMER: via the email address that the CUSTOMER registered for the service with.
To CHIRPSY: 2137 34th Ave W, Seattle, WA 98199, or by sending email to
The Terms constitutes the entire agreement between the parties concerning the subject matter hereof and the provision of SERVICES by CHIRPSY and supersede all prior statements, representations, discussions, negotiations and agreements, both oral and written. The Terms may be amended by CHIRPSY as provided above but otherwise may not be amended or modiﬁed except in writing signed by authorized ofﬁcer of CHIRPSY. Nothing in the Terms shall be deemed to limit any right or remedy that CHIRPSY may have available at law or in equity. The Terms shall be governed by and construed in accordance with the laws of the State of Washington, excluding that body of law applicable to choice of law and the United Nations Convention on Contracts for the International Sales of Goods and all legislation implementing such convention. The CUSTOMER hereby consents and attorns to the jurisdiction of such State. Each party waives any right, and agrees not to have any dispute under the Terms tried or otherwise determined by a jury, except where required by law. The SERVICES and any information that the CUSTOMER receives from CHIRPSY with respect thereto are the conﬁdential and proprietary information of CHIRPSY.
The terms and provisions hereof shall be binding and inure to the benefit of the successors of the parties hereto.
This agreement may not be waived, altered, or modified except as provided hereto.
In the event that any part of this Agreement is deemed by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be deemed severed without invalidating any other provision hereof. The parties agree to do all such things and to execute such further documents as may reasonably be required to give full effect to this Agreement. No forbearance to enforce any right shall be a waiver thereof and no waiver shall be effective except and to the extent in writing.