Welcome to Chirpy’s Terms and Conditions, which are a contract between you, the user, and Chirpy, the provider. They contain important information about how you can use Chirpy and how your membership works, as well as our responsibilities to you as a Member. As soon as you start using Chirpy, these Terms and Conditions are legally binding, so we recommend you read them first.
- Our agreement
- Chirpy Plus
- Your account
- Safety Alert
- Your content
- Other content, sites, apps, and security
- Chirpy Coins
- Your credit card security
- Ownership and branding
- Confidentiality and publicity
- Cancellation, suspension and termination of Your Account
- Right to suspend or terminate
- Important confirmations
- Our liability
- Definitions and interpretation
Competition Terms and Conditions
To use Chirpy, you must create an account. To do that, you must be:
- be at least 50 years old; and
- be legally permitted to use Chirpy by the laws of your home country.
You can create an account (“Your Account”) by completing and submitting the membership registration form on our website, and complying with our other requirements under this agreement and as we notify you from time to time.
We’re sure you’ll love using Chirpy, but if you want to leave at any time you can do so by canceling your membership. Please note that there are no refunds and that canceling your PayPal deduction does not cancel your Chirpy membership – you must also contact Chirpy to complete your cancellation.
1 Our agreement
1.1 Chirpy Plus is an online community for people over 50, as described in section 2.
1.4 You are responsible for deciding if you want to access or use third-party apps or sites that Chirpy links to. Third-party apps and sites have their own legal terms and privacy policies, and you may be giving others permission to use your information in ways we would not. Except to the limited extent that it may be required by applicable law, we are not responsible for these other sites and apps – use them at your own risk.
2 Chirpy Plus
2.1 Chirpy Plus comprises the communications and other features and services we make available to Members on our website from time to time. We may add, alter, or discontinue any component of Chirpy Plus at any time without notice or explanation. We will not be liable if for any reason our site is unavailable at any time or for any period. Any of the material on our site may be out of date at any given time, and we are under no obligation to update such material.
2.3 We reserve the right to limit your use of Chirpy Plus including:
- Your coins or rewards or other benefits associated with Your Account
- Your ability to contact other Members or your number of connections
We also reserve the right to restrict, suspend or terminate Your Account if we believe that you may be in breach of this agreement or law or are otherwise misusing Chirpy Plus.
2.4 We restrict the ability for male Chirpy members to send unsolicited messages to female Chirpy members. Male members may message female members only when the female member has instigated the conversation.
2.5 Content posted to our website is intended to provide general information on Chirpy Plus. It is for informational purposes only and is not intended to amount to representations or advice on which reliance can be placed.
2.6 Although efforts are made to ensure material on our site is current, complete and accurate, to the extent permitted by law:
(a) content is provided without any guarantees, conditions or warranties, express or implied; and
(b) we will not be liable for any loss or damage of any kind arising out of, or in connection with, the use of our site by you, including reliance on any information on our site by any visitor to our site, or by anyone who may be informed of any of its contents.
3 Your account
3.1 When you create your Chirpy account you will be asked to choose a user ID and password. Your user ID must not be liable to mislead and must comply with Chirpy’s content rules.
3.2 To use Chirpy Plus, you agree and confirm that:
(a) you are over 50 years of age;
(b) you will only have one account; and
(c) you are not already restricted by us from using Chirpy Plus.
3.3 To use the Safety Alert Services you will need to log into the Chirpy website using Your Account and provide your current mobile number, and if you change it, update this mobile number. You will also need to provide us with the phone numbers of your contacts (including other Safety Alert users). You confirm that you are authorised to provide us with such numbers to allow us to provide the Safety Alert Services.
3.4 Your right to use Chirpy Plus and Safety Alert is limited to you. You acknowledge and agree that you are responsible for all activity on Your Account. Please note:
(a) You may not authorize others to use Your Account.
(b) You must notify us via email to firstname.lastname@example.org immediately if you become aware of any unauthorised use of Your Account or any unauthorised disclosure of your user ID, password or any other details of Your Account.
(c) You must not use any other person’s Chirpy Plus account or Safety Alert Service unless you have that person’s express permission to do so.
(d) You must not use Your Account or your display name to impersonate any other person.
(e) You agree not to disrupt, modify or interfere with Chirpy Plus, Safety Alert our website or any associated software, hardware and servers in any way and you agree not to impede or interfere with others’ use of Chirpy Plus. You further agree not to alter or tamper with any information or materials on, or associated with, Chirpy Plus or Safety Alert.
(f) You must treat your display name, password and all other information associated with Your Account as confidential, and you must not disclose it to any third party. We have the right to disable any user identification code or password at any time if in our opinion you have failed to comply with any of the provisions of this agreement.
(g) Chirpy Plus servers automatically save all Chirpy Messages for your safety. We do not actively read Member correspondence unless a Member brings an issue to our attention. We then look at the messages in question and judge for ourselves, using our Code of Conduct and Terms and Conditions, whether a Member is acting inappropriately. If we deem that a Member’s messages/actions break our criteria, that Member will be dealt with accordingly.
3.5 You agree to pay us the applicable fees and taxes specific to Your Account. Failure to pay amounts due will result in the termination of Your Account and we will have no liability to you in that regard. Also, you agree that:
(a) Your purchase may be subject to foreign exchange fees or differences in prices based on location.
(b) We may store and continue billing your payment method (such as your credit card) even after it has expired, to avoid interruptions in the Services we provide to you and to use to pay for other Services you may purchase from us from time to time.
(c) Your recurring payments will be charged automatically at the start of each subscription period for the fees and taxes applicable to that period. To avoid future charges, your cancellation request must be received 48 hours before the next subscription period or renewal date
(d) All of your purchases are subject to our refund policy. We do not provide refunds on any fees or charges, including partially used periods or bank/merchant fees. Refer to paragraph 11. for specific information regarding the cancellation of your account.
(e) We may calculate taxes payable by you based on the billing information that you provide us at the time of purchase.
3.6 When you create your Chirpy Plus account, you will be added to the Chirpy Plus newsletter subscriber list so we can send you updates from time to time. However, you will have the ability to unsubscribe from this newsletter when you receive it.
3.7 You agree that we will provide notices to you in the following ways: (1) a notice within Chirpy Plus website or services, or (2) a message sent to the contact information you provided us (e.g., email, mobile number, physical address).
4 Safety Alert
4.1 As part of the Services already described, we provide a web-based application (“Safety Alert”) that allows you to send an SMS message to your friends or loved ones. This service does not replace the 111 or 911 emergency call services and is not an emergency SOS.
4.2 We may change, alter or discontinue any Safety Alert Service at any time in our sole discretion without notice or explanation.
4.3 You will need to provide your own device to use Safety Alert, and be responsible for your carrier data plan and other fees and taxes associated with your use of the Safety Alert Services.
4.4 Safety Alert does not provide monitoring or support, nor is it designed to ensure your safety or wellbeing. Safety Alert does not provide access to emergency services or emergency service providers (such as police, fire, or hospital) or otherwise connect you to public safety answering points. You should ensure you can also contact your relevant emergency services provider through a mobile, fixed-line telephone, or other services.
4.5 We rely on a number of third-party service providers to facilitate the Safety Alert Services. As such, we do not promise, nor are we responsible for, continuous availability of the Safety Alert Services or the successful sending or receipt of your communications when using the Safety Alert Services.
5 Your content
5.1 Our Acceptable Use Policy contains important rules about your content, advertisements, and communications that utilise any of the services we offer. It is important that you read our Acceptable Use Policy and watch for each update to that policy, to ensure that your use of Chirpy Plus complies with your obligations to us. You confirm that all works and materials (including text, graphics, images, and files) that you submit to us or our website for storage or publication under Your Account (your content) will always comply with our Acceptable Use Policy.
5.2 You may edit your content to the extent permitted using the editing functionality made available on our website.
5.3 You grant to us a worldwide, irrevocable, non-exclusive, royalty-free licence to reproduce, store, adapt, publish, and distribute your content under or in respect of Your Account.
5.4 Without prejudice to our other rights under these terms and conditions, if you breach any provision of this agreement in any way, or if we reasonably suspect that you have breached this Agreement in any way, we may delete, unpublish or edit any or all of your content without liability to you. We may also moderate any or all of your content, as we determine appropriate at our sole discretion.
5.5 Chirpy Plus allows messaging and sharing of information in many ways, such as your profile, links to news articles, classified postings, and referrals. Information and content that you share or post may be seen by other Members or visitors to our website. Where we have made settings available, we will honor the choices you make about who can see content or information.
6 Other content, sites, apps, and security
6.1 By using Chirpy Plus, you may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive, or otherwise harmful. We generally do not review content provided by our Members or others. You agree that we are not responsible for others’ (including other Members’) content or information. We cannot always prevent this misuse of our services, and you agree that we are not responsible for any such misuse.
6.2 Where our site contains links to other sites and resources provided by third parties, these links are provided for your information only and are not necessarily checked, approved or endorsed by us. We have no control over, and we are not responsible for, the availability of the links, the contents of those sites or resources, or their compliance with the law, and we accept no responsibility or liability for them or for any loss or damage that may arise from your use of them.
6.3 You are responsible for deciding if you want to access or use these third-party apps or sites that link from our website. Third-party apps and sites have their own legal terms and privacy policies, and you may be giving others permission to use your information in ways we would not. Except to the limited extent, it may be required by applicable law, we are not responsible for these other sites and apps – use these at your own risk
6.4 Chirpy Plus may, through our Chirpy Travel feature, publish information from and provide links to third parties to facilitate travel opportunities, arrangements, and related assistance. Where Chirpy Travel publishes links to any third-party app or website, it is important that you note these third-party apps and sites are not affiliated with Chirpy Plus in any way, we have no control over the content of such apps or websites and we are not responsible for the accuracy or content of any third-party apps or sites. You acknowledge that you access such third-party apps, sites, and information at your own discretion and risk and that Chirpy Plus makes no promises or assurances as to the accuracy, completeness, or fitness for purpose of such third-party apps, sites, the information they contain or your travel arrangements utilising those third party services. When you follow a link to or otherwise engage with, any such third-party provider you will be bound to the terms and conditions of that third-party provider.
6.5 You acknowledge that Chirpy Plus will not be liable for any loss or damage caused by any technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our site or to your downloading of any material posted on it, or on any website it links to.
6.6 You acknowledge that email is not a secure system and any communications or documents transmitted may be interfered with, contain computer viruses or other defects and may not be successfully replicated on other systems. We will not be liable for any copying, recording, reading or interference by others during or after a transmission, for any delay or non-delivery or for any damage caused in connection with a transmission.
6.7 If you have any doubts about the authenticity of any communications or documents purportedly sent by us, please contact us immediately.
7 Chirpy Coins
7.1 We may change the redemption and distribution values of Chirpy Coins at any time without notice. The most up-to-date values of Chirpy Coins will be displayed on Chirpy’s website. When you wish to redeem your Chirpy Coins as per these values, we will remove the number of redeemed Chirpy Coins from your account when we send your reward.
7.2 Chirpy Coins will expire after a period of time if unused. We will display points expiry information on the Chirpy website.
7.3 If you cancel your Chirpy membership, all Chirpy Coins that you have earned will become null and void.
7.4 If your membership is cancelled or suspended by Chirpy Plus for any reason any coins earned will become null and void and will not be redeemed.
7.5 Chirpy coins are not transferable to other members and only remain active while you are a Chirpy member.
7.6 If you cancel your membership and then choose to reactivate your membership at a later date, your Chirpy coin balance will not be reactivated with your new membership.
8.1 Chirpy Plus will run various competitions at various times and can close off any competition at any time.
8.2 Each competition will have its own Terms and Conditions, however, these general Terms and Conditions will apply to all competitions.
- This competition is run by Chirpy Plus Ltd NZ, PO Box 11384, Palm Beach, Papamoa 3151. and/or Chirpy Plus Ltd AU, PO Box 1132, Sanctuary Cove, QLD 4212
- The competition is open to residents of New Zealand/Australia aged 50 years or over except employees of Chirpy Plus and their close relatives and anyone otherwise connected with the organisation or judging of the competition.
- There is no entry fee and no purchase necessary to enter this competition.
- By entering this competition, you agree to be bound by these terms and conditions.
- To enter the competition, and for details of how to enter, visit http://chirpyplus.co.nz
- The closing date for entry will be listed on the individual competition page. After this date, Chirpy Plus Ltd will not accept further entries.
- Chirpy Plus does not accept responsibility for entries not received for whatever reason.
- The rules of the competition and how to enter are listed on the individual competition page.
- Chirpy Plus Ltd reserves the right to cancel or amend the competition and these terms and conditions without notice in the event of a catastrophe, war, civil or military disturbance, act of God or any actual or anticipated breach of any applicable law or regulation or any other event outside of the promoter’s control. Any changes to the competition will be notified to entrants as soon as possible by Chirpy Plus.
- Chirpy Plus Ltd is not responsible for inaccurate prize details supplied to any entrant by any third party connected with this competition.
- The prize is stated on the individual competition page.
- The prize is as stated, and no cash or other alternatives will be offered. The prize is not transferable. Prizes are subject to availability, and we reserve the right to substitute any prize with another of equivalent value without giving notice.
- Winners will be chosen at random by software, from all entries received and verified by Promoter and or its agents OR as a result of a popular vote conducted via social media sites as measured and recorded and verified by Promoter and or its agents.
- The winner will be notified by email and/or Chirpy Message within 28 days of the closing date. If the winner cannot be contacted or does not claim the prize within 14 days of notification, we reserve the right to withdraw the prize from the winner and pick a replacement winner.
- Chirpy Plus Ltd will notify the winner when and where the prize can be collected/is delivered.
- Chirpy Plus’s decision in respect of all matters to do with the competition will be final, and no correspondence will be entered into.
- The competition and these terms and conditions will be governed by New Zealand/Australian law, and any disputes will be subject to the exclusive jurisdiction of the courts of New Zealand/Australia.
- The winner agrees to the use of his/her name and image in any publicity material, as well as their entry. Any personal data relating to the winner or any other entrants will be used solely in accordance with current New Zealand/Australian data protection legislation and will not be disclosed to a third party without the entrant’s prior consent.
- The winner’s name will be available 28 days after the closing date by emailing email@example.com
- Chirpy Plus Ltd shall have the right, at its sole discretion and at any time, to change or modify these terms and conditions, such change shall be effective immediately upon posting to this webpage.
- Chirpy Plus also reserves the right to cancel the competition if circumstances arise outside of its control.
9 Your credit card security
9.1 The security of your personal information is important to us. We do not sell any of your personal information to anyone.
9.2 When you enter sensitive information (such as credit card numbers) on our website, we encrypt that information using secure socket layer technology (SSL). When credit card details are collected, we simply pass them on in order to be processed as required. We never permanently store complete credit card details. We follow generally accepted industry standards to protect the personal information submitted to us, both during transmission and once we receive it.
9.3 Chirpy Plus uses the Stripe Payment Gateway and PayPal for its online credit card transactions. Stripe and PayPal process online credit card transactions for thousands of international merchants, providing a safe and secure means of collecting payments via the Internet.
- All online credit card transactions performed on this site using the Stripe gateway are secured payments.
- Your complete credit card number cannot be viewed by any outside party.
- All transactions are performed under a 128 Bit SSL Certificate.
- All transaction data is encrypted for storage within Stripe and PayPal bank-grade data center, further protecting your credit card data.
- Stripe and PayPal is an authorized third-party processor for all the major international banks.
- Stripe and PayPal at no time touch your funds; all monies are directly transferred from your credit card to the merchant account held by Chirpy Plus.
10 Ownership and branding
10.1 As between the parties, we own all Intellectual Property Rights in every aspect of Chirpy Plus and its services, including in respect of the Trade Marks, our website, and any documents or materials we may provide (Chirpy Plus Materials and Our Materials), unless otherwise stated. Those works are protected by copyright laws and treaties around the world. All rights are reserved.
10.2 We hereby grant to you a non-exclusive, sub-licensable, perpetual, royalty-free license to use our Intellectual Property Rights to the extent necessary for the sole purpose of using Chirpy Plus and Safety Alert in accordance with this agreement. Other than as expressly granted by this agreement, you acquire no rights in or to Chirpy Plus or Safety Alert.
10.3 You must use reasonable endeavors to prevent any infringement of our Intellectual Property Rights and you must promptly report to us any such infringement that comes to your attention.
10.4 You consent to us referring to you and this agreement in any publicity or advertising material. You hereby grant to us a non-exclusive, sub-licensable, perpetual, royalty-free license to use your business name and trademarks in the Chirpy Plus Material or Our Materials.
10.5 You may print off one copy and may download extracts, of any page(s) from our site for your personal reference and you may draw the attention of others within your organisation to material posted on our site. But you must not use any part of the materials on our site for commercial purposes without our consent. You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way.
10.6 Our status (and that of any identified contributors) as the authors of material on our site must always be acknowledged.
10.7 You may link to the Chirpy Plus home page on a website owned by you, provided you do so in a way that is fair and legal and does not damage our reputation, but you must not suggest any form of association, approval or endorsement on our part where none exists. Our site must not be framed on any other site.
10.8 We reserve the right to withdraw linking permission without notice.
11 Confidentiality and publicity
11.1 Each party undertakes not to use the other party’s Confidential Information other than to exercise and perform its rights and obligations under this agreement (Permitted Purposes).
11.2 In relation to your Confidential Information:
(a) we will treat as confidential all of your Confidential Information supplied under this agreement. We will not divulge any such Confidential Information to any person, except to our own employees and then only to those employees who need to know it for the Permitted Purposes. We will ensure that our employees are aware of, and comply with, this clause 10; and
(b) we may provide any subcontractor with such of your Confidential Information as it needs to know for the Permitted Purposes, provided that sub-contractor has first entered into a written obligation of confidentiality owed to us in terms similar to clause 10.2.
11.3 In relation to our Confidential Information:
(a) you must treat as confidential all of our Confidential Information (wherever it may be contained or embodied, and however it may be supplied to you);
(b) you must not, without our prior written consent, divulge any part of our Confidential Information to any person other than your employees who need to know it for the Permitted Purposes;
(c) you undertake to ensure that the persons mentioned in clause 10.3(b) are made aware, before the disclosure of any part of our Confidential Information, that the same is confidential and that they owe a duty of confidence to you in terms similar to clause 10.3 (which you must ensure is adhered to).
11.4 The restrictions imposed by this clause 9 shall not apply to the disclosure of any Confidential Information which:
(a) is now in, or subsequently comes into, the public domain other than as a result of a breach of this clause 10;
(b) before any negotiations or discussions leading to this agreement, was already known by the receiving party and was not obtained or acquired in circumstances of confidentiality; or
(c) is required by law or regulation to be disclosed to any person authorized to receive the same (after consultation, if practicable, with the disclosing party to limit the disclosure to the extent necessary).
11.5 Any infringement of Chirpy Plus IP, including the copying of our branding, imagery, marketing, themes could face financial penalties of up to $20,000 plus legal fees.
12 Cancellation, suspension, and termination of Your Account
12.1 If you choose to cancel Your Account, you can do so by canceling it directly on the Chirpy website. You can also cancel it by notifying firstname.lastname@example.org. We will aim to process your cancellation request within two working days following the receipt of your email.
You must cancel your membership directly through Chirpy for us to be aware of your intention to cancel. If you only cancel your membership payment via a third party (for example, PayPal) without notifying Chirpy Plus, your account will move to a non-renewing state and terminate within 30 days. We will end the corresponding billing at the end of your current billing cycle.
There are no refunds for membership fees paid. You must cancel your account at least two working days before your next payment is due to avoid paying for another billing cycle.
12.2 If your membership is canceled or suspended by Chirpy Plus due to inappropriate behavior as outlined in our Code of Conduct (hyperlink) we will not provide a refund of unused membership fees.
Material default by a party
12.3 Material default occurs when either you or Chirpy Plus fail to honor any element of these terms and conditions. A party will be in material default under this agreement if:
(a) it fails to properly or promptly perform any material obligation under this agreement that cannot be remedied;
(b) it fails to properly or promptly perform any material obligation under this agreement that can be remedied but is not remedied within 10 working days of receiving written notice (inclusive of the date of receipt) from the other party requiring the failure to be remedied;
(c) it suspends or ceases its primary, or all of its, business activities for more than five consecutive working days;
(i) goes into receivership or has a receiver, trustee, and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property;
(ii) is unable to pay its debts as they fall due, or is presumed to be unable to pay its debts as they fall due, in terms of Applicable Companies Law (whether or not that party is incorporated under that Applicable Companies Law); or
(iii) makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors;
(e) any resolution is passed or any proceeding is commenced for its winding up or liquidation (whether on a voluntary or involuntary basis);
13 Right to suspend or terminate
13.1 If a party is in material default as specified in clause 12.3, the other party may terminate this agreement by written notice.
13.2 Without prejudice to our other rights under this agreement, if you breach this agreement in any way, or if we reasonably suspect that you have breached this Agreement in any way, we may:
(a) send you one or more formal warnings;
(b) temporarily suspend your access to our website or Your Account;
(c) permanently prohibit you from accessing our website or Your Account;
(d) block computers using your IP address from accessing our website or Your Account;
(e) contact any or all of your internet service providers and request that they block your access to our website;
(f) commence legal action against you, whether for breach of contract or otherwise; and/or
(g) suspend or delete Your Account.
13.3 Where we suspend, prohibit, or block your access to our website or Your Account, you must not take any action to circumvent such suspension or prohibition or blocking (including creating and/or using a different Chirpy Plus account).
13.4 If a Force Majeure Event under clause 17.1 continues for more than 15 consecutive working days, or for an aggregate of 30 working days in any six-month period, then the party not claiming the benefit of the Force Majeure Event will be entitled to terminate this agreement.
13.5 Either party may cancel Your Account and/or terminate this agreement at any time, for any or no reason. Where you wish to cancel Your Account, you may do so through the Chirpy website or by emailing email@example.com. We will aim to process your cancellation request within 2 working days following receipt of your email notification. Refer to paragraphs 12.1
Access to all accumulated Chirpy Points and other points and credits accrued to Your Account will be lost on termination of your Account and cannot be granted back to you.
Consequences of termination
13.6 On lawful termination of this agreement:
(a) you will cease using the Chirpy Plus Materials and all other Intellectual Property Rights of ours;
(b) each party will promptly return to the other party all other property and items provided to that party for the purposes of this agreement; and
(c) you must not solicit any Members for any purpose that may be adverse to our business interests.
Survival of rights and remedies
13.7 Termination of this agreement will not affect:
(a) any party pursuing whatever rights and remedies that may be available to it under this agreement, at law or in equity as a result of such termination which accrued up to and including the termination date; and
(b) the provisions of this agreement which expressly, or by their nature, survive termination, including clause 5 (Your Content), clause 10 (Ownership and branding), clause 11 (Confidentiality and Publicity), clause 12.1 (Suspension and termination), clause 15 (Our liability) and clause 17 (General).
14 Important Confirmations
14.1 You represent and warrant to us that:
(a) you have full power and capacity to execute, deliver and perform your obligations under this agreement;
(b) you have not taken any action, nor have any other steps been taken or legal steps been commenced or threatened against you, for your liquidation, dissolution or re-organisation; and
(c) you will at all times comply with all applicable laws and regulations with respect to your activities.
14.2 You hereby indemnify us against all liabilities, costs, expenses, damages and losses suffered or incurred by us arising out of any non-compliance by you with clause 12.1.
15 Our liability
15.1 We do not warrant or make any representation regarding the use or promotion, or the results of the use or promotion, of Chirpy Plus, Safety Alert, or regarding the acts or omissions of Members. Except as otherwise set out in this agreement, we expressly disclaim all warranties, express and implied to the fullest extent permitted by law. Without limiting the foregoing, although efforts are made to ensure Chirpy Plus Material, and Our Material on our website is current, complete, and accurate, to the extent permitted by law:
(a) Chirpy Plus, Chirpy Plus Material, and Our Material is provided without any guarantees, conditions, or warranties, express or implied;
(b) we exclude all representations and warranties relating to the subject matter of this agreement, Chirpy Plus, Safety Alert, our website and the use of our website, and the acts or omissions of Members;
(c) save to the extent that this agreement expressly provides otherwise, you will not be entitled to any compensation or other payment upon the discontinuance or alteration of Chirpy Plus website services, Safety Alert, or our website.
15.2 We will not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any loss (whether direct or indirect) of profits, business, business opportunities, data, information, revenue, turnover, reputation, goodwill, anticipated savings or wasted expenditure (including management time), provided always that nothing in this agreement will limit or exclude any liability:
(a) for death or personal injury resulting from negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) to the extent that such limitation or exclusion is not permitted under applicable law.
15.3 Our total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract shall be limited to AU$50.
15.4 You acknowledge and accept that we have an interest in limiting the personal liability of our officers and employees and, having regard to that interest, you acknowledge and agree that:
(a) we are a limited liability entity;
(b) you will not bring any claim personally against our officers or employees in respect of any losses you suffer in connection with this agreement (other than in respect of any liability that we may have for the acts and omissions of our officers and employees).
15.5 Chirpy Plus may, through our Chirpy Travel feature, publish information from and provide links to third parties to facilitate travel opportunities, arrangements, and related assistance. You acknowledge that we rely on the relevant third party providers to provide accurate and complete information and a reasonable standard of service – but we do not verify the accuracy of such information, nor do we warrant or represent that your booking experience, accommodation experience, or any other aspect of the quality of third party services will meet your expectations or otherwise be fit for any particular purpose. Any complaints, questions, or concerns with travel arrangements made in reliance on such third-party providers should be directed to the relevant third-party provider.
16.1 If any dispute arises between the parties out of or in connection with this Agreement (Dispute), either party may, by written notice to the other party, summon a meeting of the parties to the Dispute. Each party will promptly designate a representative with authority to settle the Dispute to attend the meeting(s). The authorized representatives will meet promptly as many times as necessary to discuss the matter and to negotiate in good faith to resolve the Dispute.
16.2 If the Dispute is not resolved within 10 working days of a written notice first being given pursuant to clause 15.1, the Dispute will be referred to arbitration before an arbitrator under the Arbitration Act 1996.
16.3 Nothing in this clause 14 prevents a party from seeking urgent relief in a court of competent jurisdiction.
17.1 Force Majeure: Notwithstanding any other provision of this agreement, neither party shall be liable for any failure or delay in complying with any obligation imposed on such party under this agreement if:
(a) the failure or delay is due to a Force Majeure Event;
(b) that party, on becoming aware of the Force Majeure Event, promptly notifies the other party in writing of the nature of, the expected duration of, and the obligation(s) affected by, the Force Majeure Event; and
(c) that party uses its best endeavors to mitigate the effects of the Force Majeure Event and perform that party’s obligations on time despite the Force Majeure Event.
17.2 No partnership: Nothing on our site or in this agreement shall establish any partnership or joint venture between any of the parties, constitute a party the agent of the other party, or authorize a party to make or enter into any commitments for the other party, except as expressly authorized by you or us (as the case may be).
17.3 Enforceability: If any part of this agreement is held by any court or administrative body of competent jurisdiction to be illegal, void, or unenforceable, that determination shall not impair the enforceability of the remaining parts of this agreement.
17.4 Notices: All notices to be given under this agreement may be in writing and delivered by hand, registered mail, or e-mail (provided the notice is attached to the email as a pdf document) to the relevant party at the addresses specified on the front page of this agreement. The receipt will be deemed to have occurred:
(a) for hand delivery, at the time of actual delivery to the recipient’s address;
(b) for registered mail, 3 working days after posting;
(c) for e-mailed pdf documents, the earlier of the sender’s receipt of confirmation of successful delivery, or one day after the email first leaves the sender’s network for delivery to the recipient’s address (provided the sender does not receive any indication of failure or delay in delivery within one day after that dispatch).
17.5 Compliance with laws: Each party will, in performing its obligations under and in connection with this agreement, comply with all relevant legislation and other laws.
17.6 Costs: Each party will pay its own costs of and incidental to the negotiation, preparation, execution and enforcing, or attempting to enforce, this agreement.
17.7 Further assurances: Each party will make all applications, execute all documents and do all acts and things reasonably required to implement and to carry out its obligations under this agreement.
17.8 Assignment: This agreement is personal to you. You must not (directly or indirectly) assign, novate, transfer or otherwise dispose of any of your rights under or interest in, or any of your obligations or liabilities under, or in connection with, or arising out of, this agreement except with our prior written consent.
17.10 Rights cumulative: All rights and remedies of the parties, under this agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy is not an election of that remedy to the exclusion of other remedies.
17.11 Governing law: This agreement is governed by, and construed in accordance with, the laws of New Zealand and Australia, and the parties submit to the non-exclusive jurisdiction of the New Zealand and Australian courts. We reserve the right to bring proceedings against you for breach of this agreement in your country of residence or any other relevant country.
17.12 Statutory and Regulatory Disclosures: Chirpy Plus Limited is registered in New Zealand and Australia.
17.13 Our Details: This website is owned and operated by Chirpy Plus Ltd. You can contact us by writing to firstname.lastname@example.org.
18 Definitions and interpretation
18.1 Definitions: The following definitions apply in this agreement:
- Acceptable Use Policy means our acceptable use policy found here (and also linked at the bottom menu on our website), as updated from time to time.
- Applicable Companies Law means in New Zealand the Companies Act 1993 and in Australia the Corporations Act 2001 (Cth).
- Applicable GST Law means in New Zealand the Goods and Services Tax Act 1985 and in Australia the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Applicable Privacy Law means in New Zealand the Privacy Act 1993 and in Australia the Privacy Act 1988 (Cth).
- Confidential Information means information of commercial value, in whatever form or medium, which has been kept confidential by the party from whom the information originates and which has not come into the public domain during the term of this agreement in breach of any obligation of confidence, including information relating to the terms of this agreement, the Chirpy Plus program or any of its constituent parts, or any such parts, commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to Members, pricing and marketing.
- The dispute has the meaning set out in clause 16.
- Force Majeure Event means an event or occurrence:
- which is beyond our or your (as the case may be) reasonable control; and
- which we or you (as the case may be) could not have taken reasonable measures to prevent,
- but will not include strikes, lock-outs, or any other form of a labor dispute or any other form of delay caused by contractual or labor relations with personnel or suppliers, or inability to perform due to lack of funds.
- GST means goods and services tax, payable in accordance with Applicable GST Law.
- Intellectual Property Rights means trademarks, rights in domain names, copyright, patents, registered designs, circuit layout, rights in computer software, databases and lists, rights in inventions, confidential information, know-how, and trade secrets, and all other intellectual property, in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect anywhere in the world, including the goodwill associated with the foregoing and all rights of action, powers, and benefits in respect of the same.
- Minimum Age means 50 years old (or such other minimum age as the law requires in order for us to provide Chirpy Plus to you without parental consent) or older.
- Our website means the Chirpy Plus website located at chirpyplus.com.au and at chirpyplus.co.nz.
- Permitted Purpose has the meaning set out in clause 11.
- Your Account has the meaning set out in clause 3.
- Your content has the meaning set out in clause 5.1.
- Trade Marks means our trademarks used in connection with Chirpy Plus, including the words “Chirpy Plus” and associated logos and devices.
- working day means a day other than a Saturday, Sunday, or public holiday in New Zealand or Australia when banks are open for business.
- Chirpy Plus has the meaning set out in the recitals on the front page of this agreement.
- Chirpy Plus Materials has the meaning set out in clause 10.
18.2 Interpretation: In this agreement, unless the context indicates otherwise:
(a) Words in the singular include the plural and those in the plural include the singular.
(b) References to including or includes shall be deemed to have the words “without limitation” inserted after them.
(c) Except where a contrary intention appears, a reference to a clause, Schedule, or annex is a reference to a clause of, or Schedule or annex to, this agreement.
(d) Writing or written includes faxes but neither e-mail nor any other form of electronic communication, except where expressly provided to the contrary.
(e) References to applicable law shall be deemed to be references to the laws in the country in which we are domiciled or in the countries in which we consider that we carry on business.