By using this Web site (the “Site”) in any way, including using, transmitting, downloading, or uploading any of the services or functionality (the “Service”) made available or enabled via the Site by Chocolate Kiwi Limited, or merely browsing the Site, you agree to these Terms of Service. You may not use the Service, or accept these Terms of Service, if (a) you are not of legal age to form a binding contract with Chocolate Kiwi Ltd; or (b) you are prohibited by law from receiving or using the Service. If you are entering into these Terms of Service on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms of Service, in which case “you” or “your” shall refer to such entity. Chocolate Kiwi Limited makes the Service available only if you have registered for an account. The Service may also be subject to a subscription or other agreement, posted guidelines, rules or terms of service (“Additional Terms”). If there is any conflict between these Terms of Service and the Additional Terms, the Additional Terms take precedence in relation to the Service. These Terms of Service, and any applicable Additional Terms, are referred to collectively as the “Terms.”
Chocolate Kiwi Limited may change the Terms from time to time at its sole discretion, and if Chocolate Kiwi Limited makes any substantial changes, we will notify you by sending you an e-mail to the last e-mail address you provided to us and/or by posting notice of the change on the Site. Any material changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Service. Chocolate Kiwi Limited may require you to provide consent to the updated Terms in a specified manner before further use of the Service is permitted. Otherwise, your continued use of the Site or the Service constitutes your acceptance of the changes. Please regularly check the Site to view the then-current Terms.
Capitalised terms shall have the meanings set forth in this section, or in the section where they are first used.
means, without limitation, any and all information, data, software code, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials.
means any Content, including Alpaca Content, provided, imported or uploaded to, or otherwise used by you or on your behalf with the Services.
means all specifications, user manuals, and other technical materials relating to the Services.
means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
means Users that have been specifically identified by you and for whom you will pay the applicable fee.
means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form and specifying, among other things, the number of licenses and other service contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties each order form to be incorporated into and become a part of these Terms.
means a record of an animal (Alpaca) created by a User on the Service.
means, with respect to a particular Alpaca, those Users designated by you who are authorised to assign access rights to Users and otherwise administer the Alpaca record.
means, with respect to a particular Alpaca, any Content provided, imported or uploaded to the Service in connection with such Alpaca.
means a user of the Service.
Subject to the terms and conditions of these Terms, Chocolate Kiwi Limited grants you a non-exclusive, non-transferable license to use the Service solely for your internal business purposes during the Term.
You agree that you will not: (a) permit any party to access and/or use the Service, other than the Users authorised under these Terms; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service (including, without limitation, any external websites that contain third party content and that are linked to via the Service); (d) except as permitted by applicable law, reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; (e) with respect to a particular Alpaca, exceed or attempt to exceed the scope of the access rights granted to you for such Alpaca; (f) without Chocolate Kiwi Limited’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service; (g) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; or (h) cover or obscure any page or part of the Service via HTML/CSS, scripting, or any other means. Except as expressly set forth in these Terms, no express or implied license or right of any kind is granted to you regarding the Service or any part of the Service.
Certain Content is provided through the Service by Chocolate Kiwi Limited. Subject to the terms and conditions of these Terms, Chocolate Kiwi Limited hereby grants you a non-exclusive, non-transferable license to view, download and print Content provided by Chocolate Kiwi Limited (“Chocolate Kiwi Content”), subject to the following conditions: (a) you may access and use the Chocolate Kiwi Content solely for personal, informational, non-commercial and internal purposes, in accordance with these Terms; (b) you may not modify or alter the Chocolate Kiwi Content; (c) you may not distribute or sell, rent, lease, license or otherwise make the Chocolate Kiwi Content available to others; (d) you may not remove any copyright or other proprietary notices contained in the Chocolate Kiwi Content; and (d) you may not copy or distribute any photos, graphics, audio or video in the Chocolate Kiwi Content apart from their accompanying text. Chocolate Kiwi Limited reserves the right to revoke the authorisation to view, download and print the Chocolate Kiwi Content at any time. The rights specified above are not applicable to the design, layout or look and feel of the Site. Such elements of the Site are protected by Intellectual Property Rights and may not be copied or imitated in whole or in part. No mark, graphic, sound or image from the Site may be copied or retransmitted unless expressly permitted by Chocolate Kiwi Limited.
Certain areas of the Site, such as the general wiki and the forums, may allow Users to share Content with other Users. Subject to the terms and conditions of these Terms, Chocolate Kiwi Limited hereby grants you a non-exclusive, non-transferable license to view, download and print Content (other than Alpaca Content) provided by other Users (“Other User Content”), subject to the following conditions: (a) you may access and use the Other User Content solely for personal, informational, non-commercial and internal purposes, in accordance with these Terms; (b) you may not modify or alter the Other User Content; (c) you may not distribute or sell, rent, lease, license or otherwise make the Other User Content available to others; (d) you may not remove any copyright or other proprietary notices contained in the Other User Content; and (d) you may not copy or distribute any photos, graphics, audio or video in the Other User Content apart from their accompanying text. Chocolate Kiwi Limited reserves the right to revoke the authorisation to view, download and print the Other User Content at any time.
Your rights with respect to any Alpaca Content to which you have access is governed solely by the terms and conditions of the Project License specified for such Alpaca Content; provided that if no Alpaca License is specified, such Alpaca Content will be subject to Section 5.4 as such Section applies to Other User Content.
When you register, Chocolate Kiwi Limited will ask you to provide a unique username and password to enable you to access the Service pursuant to these Terms. Chocolate Kiwi Limited reserves the right to require you to change your username and password in Chocolate Kiwi Limited’s sole discretion from time to time. You are responsible for maintaining the confidentiality of your username and password, and are solely responsible for all activities that occur under your username. You agree (a) not to allow a third party to use your account, username or password at any time; and (b) to notify Chocolate Kiwi Limited promptly of any actual or suspected unauthorised use of your account, username or password, or any other breach or suspected breach of these Terms. Chocolate Kiwi Limited reserves the right to terminate any username and password, which Chocolate Kiwi Limited reasonably determines may have been used by an unauthorised third party.
The Service and all Intellectual Property Rights in the Service, the Chocolate Kiwi Limited Content and any of Chocolate Kiwi Limited’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to you by Chocolate Kiwi Limited in providing the Service(the “Chocolate Kiwi Limited Technology”) are the exclusive property of Chocolate Kiwi Limited or its suppliers. You hereby assign to Chocolate Kiwi Limited any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you related to the Service, the Chocolate Kiwi Limited Content or the Chocolate Kiwi Limited Technology. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Service, the Chocolate Kiwi Limited Content or the Chocolate Kiwi Limited Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Chocolate Kiwi Limited Technology. All rights not expressly granted to you are reserved to Chocolate Kiwi Limited.
If you sign up for a Service that requires the payment of a fee, you shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charge will be equal to the license fee applicable to the number of Named User licenses designated in your account (“License Fee”) as set forth on the Site. Payments must be made monthly in advance unless otherwise mutually agreed upon. All payment obligations are non-cancellable and all amounts paid are non-refundable. You must provide Chocolate Kiwi Limited with a valid credit card or valid online payment account information as a condition to registering for the Service. Chocolate Kiwi Limited reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to you, which notice may be provided by e-mail.
Chocolate Kiwi Limited charges and collects in advance for use of the Service. Chocolate Kiwi Limited will automatically renew and bill your credit card or online payment account each month. The renewal charge will be equal to the License Fee in effect during the prior month, unless Chocolate Kiwi Limited has given you at least thirty (30) days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. Chocolate Kiwi Limited shall be entitled to withhold performance and discontinue Service until all amounts due are paid in full. Chocolate Kiwi Limited’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Chocolate Kiwi Limited’s income. You agree to provide Chocolate Kiwi Limited with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address and name and telephone number of an authorised billing contact and Alpaca Administrator. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, Chocolate Kiwi Limited may terminate your access to the Service in addition to any other legal remedies.
You are responsible for paying for the number of Named Groups designated in your account, whether or not the Named Group uses the Services. You may add Named Groups by designating the number of Named Groups you desire in your account. Added Named Groups will be subject to the following: (a) the fee applicable to Named Groups after such addition will be the then-current fee set forth on the Site applicable to the total number of Named Groups designated in your account and (b) any increase to the fees as a result of the addition of a Named Group in the middle of a billing month will be charged in full for that billing month. You may transfer a Named Group license to another User, provided that you may not exceed the number of Named Groups for which you have paid the applicable License Fees. You acknowledge that if you have been designated as a Named User by another User (“Paying User”), notwithstanding anything to the contrary in this Agreement, Chocolate Kiwi Limited shall be entitled to withhold performance and discontinue Service to you until all amounts due on your account (including, but not limited to, your License Fee) are paid in full.
You grant Chocolate Kiwi Limited a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Customer Content in conjunction with the Service; and (b) to use your trademarks, service marks, and logos as required to provide the Service. All rights in and to the Customer Content not expressly granted to Chocolate Kiwi Limited in these Terms are reserved by you.
You represent and warrant that any Customer Content shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (d) contain any viruses, worms or other malicious computer programming codes able to damage the Service, any Content, or other data of the Service; or (e) otherwise violate the rights of a third party. In addition, you agree not to use, or encourage or permit others to use, the Site or Service to (i) stalk and/or harass another; (ii) harm minors in any way; (iii) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (iv) forge headers or otherwise manipulate identifiers to disguise the origin of any Content posted on or transmitted through the Service; (v) use the Site, Service or Content such that it will mislead a third party into believing that he or she is interacting directly with Chocolate Kiwi Limited or the Service; (vi) engage in any chain letters, contests, junk e-mail, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); (vii) use any Chocolate Kiwi Limited domain name as a pseudonymous return e-mail address; (viii) access or use the Site or Service in any manner that could damage, disable, overburden or impair any Chocolate Kiwi Limited server or the networks connected to any Chocolate Kiwi Limited server; or (ix) market any goods or services for any business purposes (including advertising and making offers to buy or sell goods or services), unless specifically allowed to do so by Chocolate Kiwi Limited. You will defend at your expense any suit brought against Chocolate Kiwi Limited and will pay any settlement you make or approve or any damages finally awarded in such suit insofar as such suit is based on a claim by any third party based upon, resulting from or related to any improper or unauthorised use of the Service by you or any Customer Content.
Chocolate Kiwi Limited reserves the right to establish capacity limits on your storage of Customer Content on the Service. Chocolate Kiwi Limited shall provide logical and physical security to ensure the logical and physical security of its equipment and Customer Content. The logical and physical security provided by Chocolate Kiwi Limited will include, but not be limited to (a) a defined security administration practice and process including account and password administration; and (b) ensuring that only authorised Chocolate Kiwi Limited employees and contractors who have a need for physical access to provide the Service will have such access to the equipment and Customer Content. During the Term, Chocolate Kiwi Limited shall use commercially reasonable efforts to protect Customer Content behind a secure firewall system, to conduct daily data backups, and to store weekly full-system backups in a separate, fire-resistant facility.
You represent and warrant that you shall keep and maintain your own copy of all Alpaca Content that is provided to the Service and Chocolate Kiwi Limited. Except as set forth below, Chocolate Kiwi Limited is not obligated to back up any Alpaca Content that is posted on the Service. Chocolate Kiwi Limited therefore recommends that you create backup copies of any Alpaca Content posted on the Service at your sole cost and expense. You agree that any use of the Service contrary to or in violation of your representations and warranties in this section constitutes improper and unauthorised use of the Service. You agree that Chocolate Kiwi Limited may (but has no obligation to), in Chocolate Kiwi Limited’s sole discretion, remove or modify any Alpaca Content which it deems to violate your representations and warranties in this section. In the event of a loss of Alpaca Content caused by Chocolate Kiwi Limited, Chocolate Kiwi Limited will use commercially reasonable efforts to recover the Alpaca Content within ninety-six (96) hours of notification of loss. If Chocolate Kiwi Limited performs recovery services for a loss of Customer Content not caused by Chocolate Kiwi Limited, you agree to pay Chocolate Kiwi Limited’s then-current time and materials rate to attempt to recover the Alpaca Content. The foregoing constitutes your sole and exclusive remedy for any loss of Customer Content.
In the event your access to the Service is terminated (other than by reason of your breach), Chocolate Kiwi Limited will make available to you a file of the Alpaca Content if requested in writing by you within thirty (30) days after such termination. You agree and acknowledge that Chocolate Kiwi Limited has no obligation to retain the Alpaca Content, and may delete such Alpaca Content, at any time on or after the thirty-first (31st) day following termination. Chocolate Kiwi Limited reserves the right to withhold, remove and/or discard Alpaca Content, without notice, for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Alpaca Content shall immediately cease, and Chocolate Kiwi Limited will have no obligation to maintain or provide any Alpaca Content.
The Site may contain links to other web sites operated by third parties. Such third party web sites are not under the control of Chocolate Kiwi Limited. Chocolate Kiwi Limited is not responsible for the content of any third party web site or any link contained in a third party web site. Chocolate Kiwi Limited provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party web sites.
Chocolate Kiwi Limited reserves the right to terminate its agreement with any User about whom Chocolate Kiwi Limited receives copyright infringement notifications in accordance with this Section 9. Without limiting the foregoing, if you believe that a copyrighted work has been copied and posted via the Service in a way that constitutes copyright infringement, you shall provide Chocolate Kiwi Limited with the following information: (a) an electronic or physical signature of the person authorised to act on behalf of the owner of the copyrighted work; (b) an identification and location in connection with the Service of the copyrighted work that you claim has been infringed; (c) a written statement by you that you have a good faith belief that the disputed use is not authorised by the owner, its agent, or the law; (d) your name and contact information, such as telephone number or e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorised to act on the copyright owner’s behalf. Contact information for Chocolate Kiwi Limited’s Copyright Agent for notice of claims of copyright infringement is as follows:
Chocolate Kiwi Limited warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will materially conform to Chocolate Kiwi Limited’s then current Documentation for the Service under normal use and circumstances. If you notify Chocolate Kiwi Limited of a breach of warranty, Chocolate Kiwi Limited will correct or modify the Service so that it conforms to Chocolate Kiwi Limited’s then current Documentation for the Service. The foregoing constitutes your sole and exclusive remedy for any breach of warranty.
The limited warranty set forth in these Terms is made for your benefit only. Except as expressly provided in this section and to the maximum extent permitted by applicable law, the Service and any other services provided by Chocolate Kiwi Limited are provided “as is,” and Chocolate Kiwi Limited makes no (and hereby disclaims all) warranties, representations, or conditions, whether written, oral, express, implied or statutory, including, without limitation, any implied warranties of merchantability, title, noninfringement, or fitness for a particular purpose, with respect to the use, misuse, or inability to use the Service (in whole or in part) or any other products or services provided to you by Chocolate Kiwi Limited. Chocolate Kiwi Limited does not warrant that all errors can be corrected, or that operation of the Service shall be uninterrupted or error-free.
The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Chocolate Kiwi Limited is not responsible for any delays, delivery failures or other damages resulting from such problems.
To the maximum extent permitted under applicable law, in no event shall Chocolate Kiwi Limited, or its suppliers, be liable to you for any special, indirect, incidental or consequential damages or any lost profits, including any such damages or costs due to loss of data, use or goodwill, personal or property damage resulting from or in connection with Chocolate Kiwi Limited’s performance hereunder or the use, misuse, or inability to use the Service or other products or services hereunder, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if Chocolate Kiwi Limited has been notified of the likelihood of such damages. In no event shall Chocolate Kiwi Limited be liable for procurement costs of substitute products or services.
To the maximum extent permitted under applicable law, the maximum liability of Chocolate Kiwi Limited arising out of or in any way connected to these Terms shall not exceed the fees paid by you to Chocolate Kiwi Limited during the Twelve (12) months immediately preceding the claim. The existence of one or more claims under these Terms will not increase Chocolate Kiwi Limited’s liability. In no event shall Chocolate Kiwi Limited’s suppliers have any liability arising out of or in any way connected to these Terms.
The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Terms entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
These Terms will continue to apply until terminated by either you or Chocolate Kiwi Limited as set forth below (the “Term”).
If you want to terminate your agreement with Chocolate Kiwi Limited, you may do so by (a) notifying Chocolate Kiwi Limited at any time; and (b) closing your account for the Service, where Chocolate Kiwi Limited has made this option available to you. Your notice should be sent, in writing, to Chocolate Kiwi Limited’s address set forth below.
Chocolate Kiwi Limited may at any time terminate these Terms if (a) you or any of your Named Users have breached any provision of these Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms); (b) Chocolate Kiwi Limited is required to do so by law (for example, where the provision of the Site or Service to you is, or becomes, unlawful); (c) the provision of the Service to you by Chocolate Kiwi Limited is, in Chocolate Kiwi Limited’s opinion, no longer commercially viable; or (d) Chocolate Kiwi Limited has elected to discontinue the Site or the Service (or any part thereof).
Termination of your account includes: (a) removal of access to all offerings within the Service; (b) deletion of your password and all related information; and (c) barring of further use of the Service. Upon expiration or termination, you shall promptly discontinue use of the Site and the Service. However, Sections 5.6 (IP Ownership), 6 (Payment), 7.1 (License; Warranty), 7.4 (Content Loss), 8 (Third Party Links), 11 (Limited Warranty and Disclaimer), 12 (Limitation of Liability), 13 (Indemnification), 14 (Termination) and 15 (Miscellaneous) of these Terms will survive any termination
Your interactions with other Users found on or through the Service are solely between you and such other Users. If there is a dispute between you and any third party (including, without limitation, any User), Chocolate Kiwi Limited is under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between you and other Users.
Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Users.
The parties acknowledge that any actual or threatened breach of Section 5 (License Grant and Restrictions) will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
You will not assign, subcontract, delegate, or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of Chocolate Kiwi Limited, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that you may assign these Terms in connection with a merger, acquisition, reorganisation or sale of all or substantially all of you assets, or other operation of law, without any consent of Chocolate Kiwi Limited. These Terms shall be binding upon the parties and their respective successors and permitted assigns.
Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
Your relationship to Chocolate Kiwi Limited is that of an independent contractor, and neither party is an agent or partner of the other. You will not have, and will not represent to any third party that you have, any authority to act on behalf of Chocolate Kiwi Limited.
You hereby grant Chocolate Kiwi Limited the right to use your name and logo to identify you as a customer of Chocolate Kiwi Limited in materials promoting the Service. You may request that we cease further use of your name and logo in newly created materials at any time by submitting a written request via email to firstname.lastname@example.org, requesting to be excluded from such materials. Chocolate Kiwi Limited will use commercially reasonable efforts to honor such request within thirty (30) calendar days after Chocolate Kiwi Limited's receipt of such request unless such request is received by Chocolate Kiwi Limited less than five (5) business days following the date you enter into these Terms, in which case such request will be effective immediately upon receipt by Chocolate Kiwi Limited.
You are responsible for updating your data to provide Chocolate Kiwi Limited with your most current e-mail address. In the event that the last e-mail address you have provided to Chocolate Kiwi Limited is not valid, or for any reason is not capable of delivering to you any notices required by these Terms, Chocolate Kiwi Limited’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described on the notice. Any notice provided to Chocolate Kiwi Limited pursuant to these Terms should be sent to email@example.com or to the following physical address:
Chocolate Kiwi Limited
PO Box ???
These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters. No modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing.