These terms and conditions (Terms) govern your membership with Alpaca, a product described on our Website at https://www.alpaca.travel/ (Subscription). Your Subscription is for the tiered package as selected by you and agreed between us by means of the Website (Subscription Tier).
By creating an account on the Platform or otherwise accepting the benefit of any part of the Platform, you agree to be bound by these Terms which form a binding contractual agreement between you or the company you represent (the ‘Client’, or ‘you’) and Alpaca Travel Pty Limited ACN 608 409 990 (‘Alpaca’, ‘our’, ‘we’ or ‘us’). You represent and warrant that you have valid authority to enter into these Terms on behalf of any entity you may represent.
If you are an Administrator and are accepting these Terms and using our Platform on behalf of an Organisation, references to ‘you’ or ‘the Client’ in these Terms mean the Organisation that you represent, and you acknowledge and agree that you are binding the Organisation to these Terms, and you represent and warrant that you are authorised to do so.
Please note that your Subscription will continue to renew indefinitely, and you will continue to incur Fees, unless you cancel your Subscription in accordance with clause 1.3.
We may change these Terms at any time by notifying you, and your continued use of the Platform following such an update will represent an agreement by you to be bound by the Terms as amended.
In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
Please read these terms and conditions carefully before agreeing to proceed with your Subscription.
1. THE ALPACA PLATFORM
1.1 YOUR SUBSCRIPTION AND THE PLATFORM
(a) (The Platform) The Platform includes the Software, the Hosted Services and the Support Services.
(b) (Scope of Subscription) Your Subscription includes the benefits and limitations set out on our Website for your Subscription Tier, or as otherwise communicated to you when you subscribe for your Subscription (as amended from time to time by notice to you).
(c) (Subscription Tier and Subscription Basis) Your Subscription will be charged depending on:
(i) your Subscription Tier; and
(ii) the basis of your Subscription, being:
(A) how many Users you have using the Platform and how many Embed Impressions you receive; or
(B) if you access the Software using our Application Programming Interface (API), the number of and type of API Calls,
(d) Your Subscription Basis will be as agreed when you sign up on our Website. We may from time to time monitor your usage of the Platform relative to our agreed Subscription Basis and your Subscription Tier and we will notify you if you are required to upgrade your Subscription in accordance with clause 1.2.
1.2 UPGRADE AND DOWNGRADES
(a) You may upgrade or downgrade your Subscription Tier at any time by using the functionality provided in the Platform, or we may notify you (by email or otherwise via the Platform) that you are required to upgrade your Subscription Tier for a reason set out in clause 1.1(d).
(b) In upgrading or downgrading your Subscription Tier, we will:
(i) take reasonable steps to promptly provide you with access to the new Subscription Tier; and
(ii) upon providing such access, apply the new, relevant Subscription Fees:
(A) in the case of upgrades, immediately on the date of upgrade; or
(B) in the case of downgrades, in the Billing Cycle immediately following the Billing Cycle in which your access to the new Subscription Tier was provided, and you will be charged at the new Subscription Fee in that subsequent Billing Cycle (subject to clause 1.2(c))
(c) For the avoidance of doubt, if you choose to downgrade your Subscription, the new Subscription Fees will kick in at the start of the next Billing Cycle, unless we notify you otherwise. We generally don’t charge amounts for downgrades on a pro rata basis in between Billing Cycles, however we reserve the right to do so from time to time.
(d) These Terms will be taken to be amended in accordance with any changes agreed in accordance with clauses 1.2(a) and 1.2(b).
(e) If you choose to downgrade your Subscription, you acknowledge and agree that we are not liable for, and you release us for all claims arising in connection with, any loss of content, features, or capacity, including any Client IP in relation to a downgrade in your Subscription.
(a) You may cancel your Subscription any time prior to the end of the then current Subscription Period by using the functionality provided in the Platform. Your Subscription will end at the end of the then current Subscription Period. You will not be refunded for that Billing Cycle, and we may charge you for any Excess Usage Fees.
(b) Your licence to the Platform under these Terms will last for the remainder of the then current Billing Cycle to ensure you have an opportunity to retrieve all data you may need from the Software. Once the then current Billing Cycles ends, we will have no responsibility to store or otherwise retain, or make available any data, and you release us in respect of any loss or damage which may arise out of us not retaining any data beyond that point.
(c) Your access to the Platform will be revoked at the end of the relevant Billing Cycle in which you cancel your Subscription.
1.4 SOFTWARE LICENCE
(a) Subject to these Terms, during the Subscription Period, we grant to you a non-exclusive, non-transferable revocable, worldwide licence to use the Software and Documentation in accordance with our agreed Subscription Basis and your Subscription Tier.
(b) We will provide the Software in accordance with all applicable laws and industry standards.
(c) Unless otherwise agreed in writing, we may not provide access, or suspend access, to any part of the Platform until you have paid the required Fees.
1.5 HOSTED SERVICES
We will store User Data you upload to the Software using a third party hosting service selected by us (Hosted Service), subject to the following terms:
(a) (hosting location) You acknowledge and agree that we may use storage servers to host the Software through cloud-based services, which may be hosted anywhere in the world.
(b) (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosted Service will be free from errors or defects or that User Data will be accessible or available at all times.
(c) (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(d) (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
1.6 SUPPORT SERVICES
(a) We use a ticketing system to provide you with a reasonable level of support where necessary to resolve technical issues with the Software (Support Services), subject to the following terms (unless otherwise specifically agreed in writing):
(i) We will take reasonable steps to provide Support Services where necessary. You must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control.
(ii) You are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Personnel to access and use the Software.
(iii) You will not have any claim for delay to your access to the Software due to any failure or delay in Support Services.
(iv) You acknowledge and agree that we may access your Profile, including Confidential Information that you may store in your Profile, as reasonably required for us to provide you with Support Services or any other purpose reasonably required to provide you with the Platform. By contacting us, you authorise us to access your Profile in accordance with this clause and release us in respect of any loss or damage which may arise from such access. If you do not wish for us to access your Profile, please let us know upon contacting us.
(b) If, as part of the Support Services, you require service levels, you will be required to upgrade your Subscription Tier to the “Enterprise” Subscription Tier, which involves entering into a separate agreement with us. You can enquire about this process at any time by reaching out to us in writing.
1.7 THIRD PARTY SOFTWARE, TERMS & CONDITIONS
(a) You acknowledge and agree that:
(i) the Software may be reliant on third party providers, suppliers and platforms, such as Facebook; and
(ii) third party terms & conditions (Third Party Terms) may apply to your use of the Platform, including Stripe.com (our third party payment provider and merchant facility), currently located at https://stripe.com/au/checkout/legal, as updated from time to time.
(b) You agree to any Third Party Terms applicable to any third party goods and services that are used in providing the Platform, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
(c) Without limiting clause 1.7(b), we will take reasonable steps to notify you of Third Party Terms.
(d) You acknowledge and agree that:
(i) issues can arise with transferring data to software and between software, and when integrating software with other software. We cannot guarantee the integration processes to other software, websites, programs and applications (Third Party Software) will be free from errors, defects or delay. You agree that we will not be liable for the functionality or transmissions errors of any third party goods or services, including any Third Party Software; and
(ii) Third Party Software, may be subject to enhancements, upgrades or other changes, which may affect the operation of the Platform provided to you under this agreement (Third Party Updates). Alpaca will use reasonable endeavours to rectify any issues with the Platform but will not be liable for any loss suffered by you in connection with such Third Party Updates.
(a) All Users must create a Profile to use and access the Platform. If you are signing up as:
(i) an Individual User, you must create an ‘individual’ profile (Individual Profile); and
(ii) an Administrator on behalf of an Organisation, you must create an ‘organisation’ profile (Organisation Profile).
(c) You warrant that any information you give to Alpaca in the course of completing the Account registration process will always be accurate, honest, correct and up to date.
(d) You acknowledge and agree, and you must ensure that all Team Users acknowledge and agree, that if a Team User is added to an Organisation Profile, that Team User may be required to display personal contact information such as its name and email address, such that it can be viewed by other Team Users which have been added to that Organisation Profile.
(e) Once you complete the Account registration process, Alpaca may, in its absolute discretion, choose to accept you as a registered user within the Platform and provide you with an Account.
(f) Alpaca reserves the right to contact you about any concerning behaviour by you, or any User as part of your Platform, or to seek a resolution with you.
(g) Alpaca may, in its absolute discretion, suspend or cancel your Account for any reason, including for any failure to comply with this agreement.
2.2 ORGANISATION PROFILES
(a) In this clause, references to ‘you’ mean Administrator.
(b) When you create an Organisation Profile, you will be asked to invite Team Users to the Platform by providing their email addresses.
(c) You must ensure that:
(i) only Team Users authorised by the Organisation are able to access and use the Platform; and
(ii) all Team Users are made aware of, agree to and comply with the ‘End User Licence Agreement’ in Schedule 1 prior to accessing the Platform.
(d) All Team Users will be required to create a ‘user account’ (via the invitation link sent by you) to join your Organisation Profile and use and access the Platform (User Account).
3 FEES AND PAYMENT
(a) You must pay fees to us in the amounts and at the times:
(i) specified in the pricing section of the Website for your Subscription Tier;
(ii) in accordance with your usages relative to our agreed Subscription Basis; and
(iii) in accordance with any upgrade or downgrade to your Subscription Tier under clause 1.2 or as otherwise agreed in writing,
(the Subscription Fees).
(b) We may also charge you for any excess usage relative to our agreed Subscription Basis and your Subscription Tier (Excess Usage Fees).
(a) Subscription Fees must be paid in advance, and all Excess Usage Fees are paid in arrears.
(b) All Feesare non-refundable for change of mind.
(c) Unless otherwise agreed in writing, the Subscription Fees are due and payable in accordance with your selected Billing Cycle for the duration of the Subscription Period, with the first payment being due on the first day of the Subscription Period.
(d) Your Subscription will continue to renew in accordance with your selected Billing Cycle indefinitely, and you must pay Subscription Fees in respect of each Billing Cycle, unless you cancel your Subscription in accordance with clause 1.3. Otherwise, we will continue to debit the Subscription Fees from your account each Billing Cycle. We will not pay any charge back amount if you fail to cancel your Subscription in accordance with this clause. By choosing a recurring payment plan, you acknowledge that your Subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to your cancellation of your Subscription.
(e) We may submit periodic charges for the Fees without further authorisation from you, until you provide prior written notice (receipt of which is confirmed by us) that you have terminated this authorisation or wish to change your payment method. Such notice will not affect charges submitted before we could reasonably act on such notice. To terminate your authorisation or change your payment method, please use the functionality provided in the Platform.
Unless otherwise indicated, the Fees do not include taxes which may apply in Australia and in the jurisdiction in which you are located. In relation to any taxes payable for a taxable supply by us, you must pay all applicable taxes subject to us notifying you and providing a tax invoice.
We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
3.5 CHANGES TO SUBSCRIPTION FEES
We reserve the right, from time to time, to change the Fees. We will notify you in advance if we do this.
(a) The prices set out on our Website are in Australian dollars. If you wish to pay the Fees in another currency, we can offer indicative currency conversion rates or will otherwise indicate that the price will be converted in accordance with the conversion rates used by our third party payment platform provider.
Please note that conversion may attract additional fees from third parties such as your credit card provider.
(b) We do not make any representations or warranties as to the accuracy of, and do not accept any responsibility for any errors that may occur as a consequence of relying on, the conversion rates referred to in clause 3.6(a). You should always confirm current exchange rates with a reputable foreign exchange broker before relying on any conversion rates provided by us or our third party payment platform provider.
4 YOUR OBLIGATIONS
(a) You must comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.
(b) Except to the extent expressly contemplated by the purpose of the Software set out in the Documentation or our Website, you must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:
(i) permit any other person to use or access the Software via your account on the Software;
(ii) upload sensitive information or commercial secrets using the Software;
(iii) upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software;
(iv) upload any material that is owned or copyrighted by a third party;
(v) make copies of the Documentation or the Software;
(vi) adapt, modify or tamper in any way with the Software;
(vii) remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;
(viii) create derivative works from or translate the Software or Documentation;
(ix) publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties (except as permitted in accordance with this agreement);
(x) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party;
(xi) decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
(xii) attempt to circumvent any technological protection mechanism or other security feature of the Software;
(xiii) permit any use of the Platform other than in accordance with our agreed Subscription Basis; and
(xiv) use our API other than as expressly agreed between us.
(c) If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website.
5 USER OBLIGATIONS
(a) In this clause 5, “you” means an Administrator.
(b) You agree, and you must ensure that all Team Users agree:
(i) to comply with each of your obligations in these Terms;
(ii) not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Platform;
(iii) to not share your Platform account information with any other person and that any use of your account by any other person is strictly prohibited. You must immediately notify us of any unauthorised use of your account, password or email, or any other breach or potential breach of the Platform’s security;
(iv) to not use the Platform for any purpose other than for the purpose for which it was designed, including you must not use the Platform in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);
(v) not to act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Platform;
(vi) you must not make any automated use of the Platform and you must not copy, reproduce, translate, adapt, vary or modify the Platform without our express written consent;
(vii) that we may change any features of the Platform at any time on notice to you;
(viii) that information given to you through the Software, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
(ix) that we may cancel your account at any time if we consider, in our absolute discretion, that you are in breach or are likely to breach this clause 5.
6 DEVELOPED MATERIALS
By providing or posting any maps, travel guides, ‘must-see’ lists or plotted itineraries developed using the Software, or any other information, materials or other content in connection with the Software (Developed Material), you represent and warrant that, and must ensure that all Users make equivalent representations and warranties:
(a) you are authorised to provide the Developed Material (including by being authorised to provide any services that you represent you provide);
(b) the Developed Material is accurate and true at the time it is provided;
(c) any Developed Material which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;
(d) the Developed Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
(e) the Developed Material is not “passing off” of any product or service and does not constitute unfair competition;
(f) the Developed Material does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, confidential information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
(g) the Developed Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Platform or any network or system;
(h) you will not display or share with any Team User screenshots of any Developed Material without our prior written approval; and
(i) the Developed Material does not breach or infringe any applicable laws.
(a) You grant, and must ensure that all Users grant, to us a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Developed Material in order for us to provide the Platform to you (including, but not limited to, sharing the Developed Material on our Website for promotion purposes).
(b) If it is determined that you retain moral rights (including rights of attribution or integrity) in any Developed Material, you forever release us from any and all claims that you could assert against us by virtue of any such moral rights, and you must ensure that all Users grant an equivalent release.
(c) You indemnify us against all damages, losses, costs and expenses incurred by us arising in connection with any third party claim that Developed Material infringes any third party’s Intellectual Property Rights.
(a) The Software acts as a passive conduit for the online distribution of Developed Material and has no obligation to screen Developed Material. However, we may, in our absolute discretion, review and remove any Developed Material at any time without giving any explanation or justification for removing the Developed Material, including (without limitation) where, in our reasonable opinion, the Developed Material infringes any third party Intellectual Property Rights.
(b) You agree that you are responsible for keeping and maintaining records of Developed Material.
Unless otherwise agreed:
(a) all displays or publications of any Developed Material must bear an accreditation and/or a copyright notice including our name in the form, size and location as directed by us, and any other accreditation and/or copyright notice as requested by any of our third party providers from time to time; and
(b) we retain the right to:
(i) describe the Developed Materials and reproduce, publish and display the Developed Material in our portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Developed Material in connection with such uses; and
(ii) display your logo in sales and marketing materials, or otherwise for promotion purposes.
7 INTELLECTUAL PROPERTY
7.1 SOFTWARE IP
(a) (Our ownership) We retain ownership, at all times, of the Software and Documentation, including:
(i) the Intellectual Property Rights attaching to, or subsisting in, the Software and Documentation;
(ii) any customisations of, and modifications, additions and upgrades to, the Software and Documentation (including where such modifications are made to suit the Client’s individual needs);
(iii) information or data, source codes and other information technology relating to or connected with the Software or Documentation;
(iv) marketing information relating to or connected with the Software or Documentation; and
(v) technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Software, but excluding any Client IP (the Software IP).
(b) (Licence to you) You are granted a licence to the Software IP, in accordance with our agreed Subscription Basis, and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Software. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software IP without prior written consent from us or as otherwise permitted by law.
7.2 CLIENT IP
(a) You retain ownership of:
(i) any materials uploaded by you to the Platform or otherwise provided to us under or connection with these Terms or your Subscription, including any Intellectual Property Rights attaching to those materials; and
(ii) any Developed Material, (the Client IP).
(b) You grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use (including the right to sublicence) Client IP to the extent reasonably required to provide the Platform.
(c) We will establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of Client IP.
(d) We reserve the right to remove any Client IP, including where we deem Client IP to be inaccurate, misleading, that may affect the operation of the Software, inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.
(e) You are responsible for ensuring that:
(i) you share Client IP only with intended recipients; and
(ii) all Client IP is appropriate and not offensive.
(i) warrant that our use of Client IP will not infringe any third-party Intellectual Property Rights; and
(ii) indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
8 CONFIDENTIALITY AND PRIVACY
(a) Except as contemplated by these Terms, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.
(c) Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information (Security Breaches).
(d) The notifying party will investigate each potential, actual or suspected Security Breach and assist the other party in connection with any related investigation.
9 enhancements and Changes
(a) We may from, time to time, in our absolute discretion release enhancements to the Software, where enhancements means any upgraded, improved, modified or new versions of the Software, or otherwise make changes to the Software (including removing any features that are not used or are no longer in the overall best interests of the Software). Any enhancements or change to the Software will not limit or otherwise affect these Terms. Enhancements and changes may cause downtime or delays from time to time, and credits will not be provided for such downtime.
(b) We will not be liable for any loss suffered by you in connection with any enhancements and changes, including any Client IP loss. You must ensure that you regularly conduct back-ups of all Client IP.
10.2 WARRANTIES AND LIMITATIONS
(a) (Warranties) We warrant that:
(i) during the Subscription Period, the Software will perform substantially in accordance with the Documentation;
(ii) during the Subscription Period, the Platform will be provided as described to you in, and subject to, these Terms; and
(iii) to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
(b) (Errors) We will correct any errors, bugs or defects in the Software which arise during the Subscription Period and which are notified to us by you unless the errors, bugs or defects:
(i) result from the interaction or integration of the Software with any other Platform or any computer hardware, software or services;
(ii) result from any misuse of the Software; or
(iii) result from the use of the Software by you other than in accordance with these Terms or the Documentation.
(c) (Service limitations) The Platform is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that we cannot guarantee that:
(i) the Platform will be free from errors or defects;
(ii) the Platform will be accessible at all times;
(iii) the features and functionality of the Platform will be consistent across all web browsers;
(iv) messages sent through the Platform will be delivered promptly, or delivered at all;
(v) information you receive or supply through the Platform will be secure or confidential; or
(vi) any information provided through the Platform is accurate or true.
(d) (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Terms are excluded.
(e) (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL ). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
10.3 LIMITATION OF LIABILITY
(a) We do not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information, your computer systems, mobile phones or other electronic devices arising in connection with use of the Software.
(b) Whilst our Platform allows you to develop custom maps, lists and guides for personal use, we cannot guarantee that the information in any Developed Material is accurate or up-to-date. You must take your own precautions before relying on any Developed Material for guidance, direction, navigation, road safety or any other related purpose.
(c) You must take your own precautions to ensure that the processes which you employ for accessing the Software does not expose you to the risk of data loss, hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(d) To the maximum extent permitted by applicable law, Alpaca limits all liability in aggregate of all claims to the Client (and any third parties who encounter the services or goods through the Client’s business) for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement, the Platform or any other goods or services provided by Alpaca to the amount paid by the Client to Alpaca in the 3 months preceding the date of the event giving rise to the relevant liability.
The Client indemnifies Alpaca and its employees, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the Client’s business) arising from the Client’s or the Client’s employee’s, client’s, contractor’s or agent’s:
(a) breach of any third party intellectual property rights;
(b) breach of any term of this agreement;
(c) negligent, wilful, fraudulent or criminal act or omission; or
(d) use of the Platform or any other goods or services provided by Alpaca.
10.5 CONSEQUENTIAL LOSS
To the maximum extent permitted by law, under no circumstances will Alpaca be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement, the Platform or any other goods or services provided by Alpaca (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
11 DISPUTES AND TERMINATION
11.2 DISPUTE RESOLUTION
(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith.
(d) If the dispute is not resolved within a period of 14 days after the date of the notice, a party may by notice to the other party or parties to the dispute refer the dispute for mediation by the Australian Disputes Centre (the ADC) in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (Guidelines). The terms of the Guidelines are hereby deemed incorporated into this agreement.
(e) If the dispute is not resolved within 28 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
11.3 TERMINATION BY US
(a) We may terminate these Terms or any Subscription in whole or in part immediately by written notice to you if:
(i) you, a member of your Personnel, or a User, are in breach of any term of these Terms or any part of a Subscription; or
(ii) you become subject to any form of insolvency or bankruptcy administration.
(b) Upon termination of these Terms by us, the Subscription Fees already paid will be non-refundable, and you must promptly pay:
(i) the remainder of the Fees applicable for the Subscription Period as if the agreement had not been terminated;
(ii) our expenses to date; and
(iii) any payments required by our suppliers to discontinue their work.
11.4 TERMINATION BY CLIENT
You may terminate these Terms if:
(a) we have committed a material breach of these Terms or a Subscription and have failed to remedy the breach within 30 days’ written notice by you; or
(b) we become subject to any form of insolvency or bankruptcy administration.
If you validly terminate in accordance with this clause, no further fees will be payable by you (unless later found that such termination was invalid).
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address used by a party to create an account in the Platform or otherwise most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given when replied to by the other party.
13 FORCE MAJEURE
(a) We will not be liable for any delay or failure to perform our obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
(b) If a Force Majeure Event occurs, we must use reasonable endeavours to notify the Client of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which we will be unable to perform or be delayed in performing our obligations under this agreement.
(c) Subject to compliance with clause 13(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of us; or
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.
14.2 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
14.5 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
14.7 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
|API Call||means an API call that is made to the Software programmatically, outside of the Software.|
|Administrator||means an individual who agrees to these Terms on behalf of its Organisation (including as an employee or otherwise on behalf of a company, employer, organisation or other legal entity).|
|Billing Cycle||means the period between the last billing date and the current billing date, as agreed when you sign up on our Website or as otherwise updated using the functionality provided in the Platform.|
|Client IP||has the meaning given in clause 7.2(a).|
|Confidential Information||means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge.|
|Documentation||means all manuals, help files and other documents supplied by us to you relating to the Software, whether in electronic or hardcopy form.|
|Embed Impression||means, in relation to the Client’s website, a view by a third party of that website embedding or otherwise containing Software IP created by the Client.|
|Excess Usage Fees||has the meaning given in clause 3.1(b).|
|Fees||means the Subscription Fees and any Excess Usage Fees.|
|Hosted Service||has the meaning given in clause 1.5.|
|Individual Profile||has the meaning given in clause 2.1(a)(ii).|
|Individual User||means an individual signing up to these Terms.|
|Intellectual Property Rights||means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.|
|Number of Embed Impressions||means the maximum number of Embed Impressions that the Client may receive, in accordance with the Subscription.|
|Number of Seats||means the maximum number of Users that the Administrator may make the Platform available to, in accordance with the Subscription.|
|Organisation||means an organisation signing up to these Terms.|
|Organisation Profile||has the meaning given in clause 2.1(a)(ii)|
|Personnel||means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.|
|Platform||includes the Software, Hosted Services and Support Services (and any other services to be provided to you under these Terms).|
|Profile||means an Individual Profile, Organisation Profile and/or a User Account, as the context requires.|
|Software||means the software as described on our Website, and which is licenced to you in accordance with clauses 1.4 and 7.1(b).|
|Software IP||has the meaning given in clause 7.1(a).|
|Subscription||has the meaning given in the first paragraph of these Terms, and includes the limitations set out in clause 1.1(b) and on the Website.|
|Subscription Fees||has the meaning set out in clause 3.1 of these Terms.|
|Subscription Period||means the period of your Subscription to the Platform as agreed on the Website.|
|Subscription Tier||has the meaning given in the first paragraph of these Terms.|
|Support Services||has the meaning given in clause 1.6.|
|Team User||means a User granted access to the Platform by an Administrator.|
|Third Party Software||has the meaning given in clause 1.7(d)(i).|
|Third Party Terms||has the meaning given in clause 1.7(a)(ii).|
|User||means end users of the Platform, on your website or any other platform, and any other third party granted access to the Software by you.|
|User Data||means files, data, materials or any other information, which is uploaded to the Software by you or a User, including any Intellectual Property Rights attaching to those materials.|
|Website||means the website at the URL set out in the first paragraph of these Terms, and any other site operated by us in connection with the Platform.|
Schedule 1 End User Licence Agreement
|Administrator||means an individual which Alpaca has entered into an agreement to provide the Alpaca Software on behalf of its organisation (including as an employee or otherwise on behalf of a company, employer, organisation or other legal entity)..|
|Alpaca||means Alpaca Travel Pty Limited (ACN 608 409 990) the developer and owner of the Alpaca Software.|
|Alpaca Software||means the mapping tookit for content creators described on the Website.|
|Documentation||means all manuals, help files and other documents supplied by us to you relating to the Alpaca Software, whether in electronic or hardcopy form.|
|Intellectual Property Rights||means all copyright, trade mark, design, patent, moral rights, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this EULA both in Australia and throughout the world.|
|Licensed Material||means the software developed by Alpaca.|
|Organisation Profile||means an ‘organisation’ profile created by an Administrator on behalf of its organisation.|
|Team User||means a User granted access to the Platform by an Administrator.|
|User||means any end user of the Platform.|
|Website||means the website set out at |
and any other site operated by us in connection with the Alpaca Software.
1 APPLICABILITY AND DEEMED ACCEPTANCE
(a) This EULA applies to any Team User of the Alpaca Software. You agree to, and will be deemed to have accepted, this EULA when you access the Alpaca Software.
(b) By accessing the Alpaca Software, you irrevocably consent to the terms of this EULA and represent and warrant that you will comply with the scope and restrictions of the Team User Licence (as defined in clause 2.1(a)) to the Alpaca Software provided under this EULA. If you do not accept this EULA, you must not access, use or otherwise view the Alpaca Software.
(c) This EULA commences on the date you are granted access to the Alpaca Software by the Administrator and will continue until your access to the Alpaca Software is terminated by the Administrator or Alpaca.
2 USE OF Alpaca Software
2.1 GRANT OF LICENCE
(a) You are granted a revocable, worldwide, royalty-free licence to use the Alpaca Software for the purpose as set out on our Website or in any Documentation (Purpose).
(b) You must only use the Licensed Materials:
(i) in accordance with the limitations of the Purpose;
(ii) in a manner that is consistent and compliant with clause 2.2; and
(iii) in compliance with any other restrictions as determined by the Administrator and/ or Alpaca from time to time.
2.2 RESTRICTIONS ON LICENCE
Except in accordance with clause 2.1(b), you must not, without prior written approval from the Administrator or Alpaca in their absolute discretion:
(a) make copies of the documentation or the Alpaca Software;
(b) provide the Alpaca Software to any third party;
(c) adapt, modify or tamper in any way with the Alpaca Software;
(d) remove or alter any copyright, trade mark or other notice on or forming part of the Alpaca Software or documentation;
(e) create derivative works from or translate the Alpaca Software or documentation, other than for your own personal use only;
(f) publish or otherwise communicate the Alpaca Software or documentation to the public, including by making it available online or sharing it with third parties;
(g) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Alpaca Software or documentation to any third party;
(h) decompile or reverse engineer the Alpaca Software or any part of it, or otherwise attempt to derive its source code; or
(i) attempt to circumvent any technological protection mechanism or other security feature of the Alpaca Software.
2.3 LIMITATIONS OF Alpaca Software
Alpaca does not guarantee, and make no warranties, to the extent permitted by law, that:
(a) the Alpaca Software will be free from errors or defects;
(b) the Alpaca Software will be accessible or available at all times; or
(c) any information provided through the Alpaca Software is accurate or true.
(a) You will be sent an invitation link by the Administrator to join an Organisation Profile on the Platform. To join the Organisation Profile and access and use the Platform, you must create a ‘user account’ (User Account).
(b) As part of the User Account registration process and as part of your continued use of the Platform, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, mobile phone number, and other information as determined by Alpaca from time to time.
(c) You warrant that any information you give to Alpaca in the course of completing the User Account registration process will always be accurate, honest, correct and up to date.
(D) You acknowledge and agree that in creating a User Account, you may be required to display personal contact information such as its name and email address, which will be visible to other Team Users which have been added to the same Organisation Profile.
(e) Once you complete the User Account registration process, Alpaca may, in its absolute discretion, choose to accept you as a registered user within the Platform and provide you with a User Account.
(f) Alpaca reserves the right to contact you about any concerning behaviour by you, or to seek a resolution with you.
(g) Alpaca may, in its absolute discretion, suspend or cancel your Account for any reason, including for any failure to comply with this agreement.
(a) Alpaca does not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information, your computer systems, mobile phones or other electronic devices arising in connection with use of the Alpaca Software.
(b) You must take your own precautions to ensure that the process which you employ for accessing the Alpaca Software does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(c) Whilst our Platform allows you to develop custom maps, lists and guides for personal use, we cannot guarantee that the information in any material created by you using our Platform (Developed Material) is accurate or up-to-date. You must take your own precautions before relying on any Developed Material for guidance, direction, navigation, road safety or any other related purpose.
(d) To the maximum extent permitted by applicable law, Alpaca limits all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the Alpaca Software to $100 (AUD) in aggregate. This includes the transmission of any computer virus.
(e) You indemnify Alpaca and its employees, agents and contractors (Personnel) in respect of all liability for loss, damage or injury which may be suffered by any person arising from, or in connection with, your use of the Alpaca Software or breach of this EULA (or both, as the case may be).
(f) You acknowledge and agree that Alpaca will have no liability for any act or omission by you which results in or contributes to damage, loss or expense suffered by you or another user in connection with the use of the Alpaca Software and indemnify Alpaca for any such damage, loss or expense.
(g) All express or implied representations and warranties given by Alpaca or its Personnel are, to the maximum extent permitted by applicable law, excluded. Where any law implies a condition, warranty or guarantee into this EULA which may not lawfully be excluded, then to the maximum extent permitted by applicable law, Alpaca (and its Personnel’s) liability for breach of that non-excludable condition, warranty or guarantee will, at our option, be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
(h) To the maximum extent permitted under applicable law, including the Competition and Consumer Act 2010 (Cth), under no circumstances will Alpaca or its Personnel be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Alpaca Software, this EULA or their subject matter.
5.1 AUTOMATIC TERMINATION
This EULA will be automatically terminated, and your license to the Alpaca Software will be immediately revoked, if the agreement between Alpaca and the Administrator for the Licensed Materials expires, is terminated or otherwise comes to an end.
5.2 TERMINATION BY Alpaca OR Administrator
Alpaca or the Administrator (or both) may terminate this EULA immediately by notice to you if:
(a) you are in breach of any term of this EULA; or
(b) you commit, or Alpaca or the Administrator reasonably suspects that you may commit, any breach of this EULA.
5.3 EFFECT OF EXPIRY OR TERMINATION
(a) In the event of expiry or termination of this EULA, you must:
(i) immediately cease using the Alpaca Software; and
(ii) remove the Alpaca Software from all materials in your care, custody or control that feature the Alpaca Software, and, if the Alpaca Software cannot be removed, then at Alpaca’s option, return or destroy all such material.
(b) Termination of this EULA will not affect any rights accruing to any party to the date of termination nor any obligation performed to the date of termination or any obligation which expressly or impliedly survives termination of this EULA.
5.4 YOUR DATA ON TERMINATION
You are solely responsible for removing any information you store in the Licensed Material prior to termination of this EULA. Alpaca will not be liable to you for any loss of your or any other user’s data or information upon termination of this EULA.
6.1 GOVERNING LAW AND JURISDICTION
This EULA is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this EULA. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to this EULA may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
6.3 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this EULA.
You cannot assign, novate or otherwise transfer your rights or obligations under this EULA without Alpaca’s prior consent.
6.5 ENTIRE AGREEMENT
This EULA embodies the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this EULA.