These Terms and Conditions shall apply to the provision of Software by PlacePosition Ltd, a company registered in England under number 09201227, of 5 Fremeaux Terrace, Northampton, NN2 6RE, “the Company”.
Please read these terms and conditions carefully. You agree to comply with and be bound by these Terms and Conditions upon your first use of the Software. If you do not agree to all of these terms and conditions, you must not use the Software.
1. Definitions and Interpretation: In these Terms and Conditions, the following expressions have the following meanings:
“Consumer” means an individual consumer as defined in the Consumer Rights Act 2015;
“Customer” means the Consumer, individual, firm or corporate body purchasing the Software. Where an individual is entering into this Contract on behalf of a business, the individual confirms they have the authority to do so and to contractually bind that business and the business shall be the Customer in the context of this Contract.
“Customer Data” means the data inputted to the Software by the Customer (or the Customer’s authorised agents), authorised users, or us on the Customer’s behalf, for the purpose of using the Software or facilitating the Customer’s use of the Software.
“Contract”means the contract formed as detailed in clause 2, which includes the acceptance of these Terms and Conditions; and
“Software”means the Alpaka online software provided by the Company;
“Website” means the website that you are currently using (www.alpaka.io) and includes the Alpaka software contained on the Website, any other related apps, and any sub-domains of the Website unless expressly excluded by their own terms and conditions.
1.1 Each reference in these Terms and Conditions to:
1.1.1 “we”, “us” and “our” is a reference to the Company;
1.1.2 “you” and “your” is a reference to the Customer;
1.1.3 “writing” and “written” includes emails;
1.1.4 a statute is a reference to that statute as amended or re-enacted at the relevant time;
1.1.5 “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
1.1.6 a clause refers to a clause of these Terms and Conditions;
1.1.7 a "Party" or the "Parties" refer to the parties to these Terms and Conditions.
1.2 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon their interpretation.
1.3 Words imparting the singular number shall include the plural and vice versa. References to any gender shall include the other gender. References to persons shall include corporations.
2. The Contract
2.1 A legally binding Contract is formed as soon as you use the log-in details provided by us in order to first access the Software. You agree to comply with and be bound by these Terms and Conditions upon your first use of the Software.
2.2 Once the Contract is formed, we will immediately grant you a limited, non-exclusive, non-transferrable licence to use our Software solely for your own personal purposes or internal business operations, within the bounds of these Terms and Conditions.
2.3 The Contract will continue indefinitely, on a rolling monthly basis, and will be automatically renewed each month, on the same terms and conditions as set out in this Contract (with the exception of the price) unless notice to terminate is given by either party in accordance with clause 7 below.
3.1 3.1 Each person authorised to use the Software (an “Authorised User”) will be sent a separate log-in.
3.2 It is your responsibility to ensure that your employees, agents and other parties under your control who will use the Software do so in accordance with these terms and conditions and are accordingly notified of the same.
3.3 You will ensure that any Authorised User who leaves your employment has their access to the Software removed promptly. You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, shall promptly notify us. We shall be entitled to carry out quarterly audits to ensure that only Authorised Users have access to the Software.
3.4 All proprietary rights in the Software remain with us. You shall not:
3.4.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit, or distribute all or any portion of the Software in any form or media or by any means;
3.4.2 attempt to reverse compile, disassemble, or reverse engineer all or any part of the Software;
3.4.3 access all or any part of the Software in order to build a product or service which competes with the Software;
3.4.4 vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the Software;
3.4.5 sub-license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party except the Authorised Users; or
3.4.6 attempt to obtain, or assist third parties in obtaining, access to the Software other than as provided under this clause 3.
3.5 We do not warrant that your use of the Software will be uninterrupted or error-free; nor that the Software, and/or the information obtained by you through the Software will meet your requirements.
3.6 We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.7 We reserve the right to carry out maintenance at such times as may be necessary at our discretion but will endeavour to give you advance notice where possible.
3.8 The Customer acknowledges that Customer Data may be held outside of or transferred to countries which do not have data protection laws equivalent to those in force in the European Economic Area. Please refer to clause 10 for further information.
3.9 The Customer undertakes that it will not allow or suffer any password to be used by more than one Authorised User and confirms that it will use reasonable endeavours to ensure that each Authorised User keeps their password confidential. The Customer will also ensure that each password is reasonably strong and secure, containing a combination of letters, numbers and symbols, and is changed regularly, no less frequently than once every three months.
3.10 The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Software that:
3.10.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.10.2 facilitates illegal activity;
3.10.3 depicts sexually explicit images;
3.10.4 promotes unlawful violence;
3.10.5 is knowingly discriminatory based on race, gender, religious belief, sexual orientation, disability, or any other illegal activity; or
3.10.6 causes or may cause damage or injury to any person or property
and we reserve the right, without liability to the Customer, to remove any material that breaches the provisions of this clause.
3.11 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer without our written permission.
3.12 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for its legality, reliability, integrity, accuracy and quality. The Customer is responsible for backing up any Customer Data and we shall not be responsible for any loss, destruction, alteration or disclosure of such Customer Data.
3.13 If the Customer Data contains personal data of any third party (including, but not limited to, the Customer’s own clients and employees), it is the Customer’s responsibility to notify such parties that their data is being held and processed using the Software. If these third parties wish to object and withdraw consent to this processing for any reason at any time, the Customer must delete such data immediately. If the Customer fails to do so promptly, we will have the right to delete it.
3.14 The Customer assumes sole responsibility for results obtained from your use of the Software and for conclusions drawn from such use.
4.1 The Software is commercially licensed software. It is not open-source, freeware or shareware. The licence fee payable for use of the Software is as stated on our Website, or otherwise as agreed between us.
4.2 We reserve the right to review our licence fees periodically and will provide you with a minimum of 30 days’ notice of any change in the fees before such change shall take effect.
4.3 All new Customers will be offered a free 60 day trial period. During this trial period, the Software will be branded with the Company’s logo. The Customer can cancel their use of the Software at any time during this trial period by notifying us and clause 7.6 will apply.
4.4 If we do not receive notice to cancel, the Customer will be automatically transferred to a paying Contract and we will automatically issue our first invoice and subsequent invoices in accordance with clause 4.6 below.
4.5 In the event the Customer upgrades to a paying Contract prior to the expiry of the trial period, the Customer will then be entitled to use their own branding and we will offer a 30% discount for use of the Software during the first 12 months, starting on the date the trial period ended.
4.6 We will invoice on the first day of the month, in advance, for use of the Software during that month. Invoices must be paid in full within 30 days from the date of invoice.
4.7 Fees will be charged pro rata in the event the Customer cancels (or we terminate the Contract in accordance with clause 7) part way through a calendar month.
4.8 All fees and charges payable under this Contract are exclusive of VAT (where applicable) and other sales tax which shall be payable by you at the rate and in the manner prescribed by law against submission of a valid tax invoice.
4.9 Without prejudice to any other rights or remedies we may have, should any invoice become overdue, we shall have the right to suspend the use of the Software immediately. Should any invoice remain unpaid for a period of 60 days or more, we will automatically terminate your account and irretrievably delete any Customer Data contained in the Software.
5. Intellectual Property Rights, Claims and Disputes
5.1 The Software, together with any and all intellectual property rights of whatever nature which now or in the future subsist in the Software are and shall remain our property. This Contract does not constitute a sale of the original Software or any copies thereof.
5.2 You must notify us immediately if you become aware of any unauthorised use of the whole or any part of the Software by any person.
5.3 We will defend, at our own expense, any claim brought against you alleging that the use of the Software infringes the Intellectual Property Rights of a third party and we shall pay all costs and damages awarded or agreed to in settlement of such a claim provided that you:
5.3.1 furnish us with prompt written notice of the alleged claim;
5.3.2 provide us with reasonable assistance in respect of the claim;
5.3.3 and give us the sole authority to defend or settle the claim.
5.4 We shall have no liability for any such claim resulting from any modification of any part of the Software by any party other than us or an authorised agent of ours.
6. Our Obligations
6.1 We warrant that the Software will operate as described, when used properly.
6.2 We warrant that we will use all reasonable care and skill in fulfilling our obligations under this Contract and that all personnel have qualifications and experience appropriate for the tasks to which they are allocated.
6.3 We will ensure that we and our servants, agents and subcontractors take all reasonable precautions to ensure that no known viruses, spyware or other malware for which detection and antidote software is generally available are coded or introduced into the Software.
6.4 If we receive written notice from you, after the Contract is formed, of any breach of our obligations then we shall remedy the defect or error in question at our own expense and as soon as reasonably possible.
6.5 When notifying us of a defect or error, please (where possible) provide us with a documented example of such defect or error.
6.6 Our obligations are subject to you complying with your obligations under the terms of this Contract and shall also be subject to the limits and exclusions of liability set out in clause 8. In particular, they shall not apply if any defect in the Software arose or was exacerbated as a result of:
6.6.1 Incorrect use, operation or corruption of the Software;
6.6.2 Any unauthorised modification or alteration of the Software; or
6.6.3 Use of the Software with other software or on equipment with which it is incompatible.
7.1 If you are a Consumer in the European Union, you have a legal right to a “cooling off” period in which you can cancel the Contract for any reason within 14 days from the date the Contract is formed. As all Customers are entitled to a free trial period in accordance with clause 4.3, this represents the Customer’s “cooling off” period.
7.2 The Customer may terminate this Contract immediately at any time by giving us notice.
7.3 We may terminate this Contract at any time by giving the Customer at least 30 days’ written notice.
7.4 Either Party may terminate the Contract immediately by giving written notice to the other if the other Party commits any serious breach of any term of this Contract and (if the breach is capable of being remedied) has failed to remedy the breach within 14 days after receiving a written request from the other Party to do so.
7.5 The Contract cannot otherwise be cancelled and in this event, no refund will be provided and the Services will remain available to you until officially terminated.
7.6 Upon the termination of the Contract, we will immediately restrict your access to the Software. However, the Customer Data will remain available to you to access for a period of 30 days from the date of termination and you will be entitled to extract any such data to store on separate media for continuity purposes. After 30 days, we will irretrievably delete any Customer Data contained in the Software.
7.7 Termination of this Contract for any reason will not affect any accrued rights or liabilities of either Party and it will not affect the coming into force or the continuance in force of any provision in this Contract which is expressly or by implication intended to come into or continue in force on or after such termination.
8.1 We will be responsible for any foreseeable loss or damage that you may suffer as a result of our breach of these Terms and Conditions or as a result of our negligence. Loss or damage is foreseeable if it is an obvious consequence of our breach or negligence or if it is contemplated by you and us when the Contract is created. We will not be responsible for any loss or damage that is not foreseeable.
8.2 Under no circumstances will we be liable to you for any loss of profit, loss of business, interruption to business, loss of data or for any loss of business opportunity.
8.3 Nothing in these Terms and Conditions seeks to limit or exclude our liability for death or personal injury caused by our negligence (including that of our employees, agents or sub-contractors); or for fraud or fraudulent misrepresentation.
8.4 Nothing in these Terms and Conditions seeks to exclude or limit your legal rights as a Consumer, where applicable. For more details of your legal rights, please refer to your local Citizens Advice Bureau or Trading Standards Office.
8.5 For business Customers only, our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be for direct damages only and shall be limited to the price paid by you for use of the Software in the 30 days preceding the date on which the alleged claim arose. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9. Confidentiality: Each Party undertakes that throughout the duration of the Contract, the Parties may disclose certain confidential information to each other. Both parties agree that they will not use the confidential information provided by the other, other than to perform their obligations under this Agreement. Each Party will maintain the confidential information’s confidentiality and will not disseminate it to any third party, unless so authorised by the other Party in writing.
10. Data Protection: Both parties agree to comply with the provisions of the General Data Protection Regulation 2016 and any other relevant data protection legislation in force.
11. Force Majeure: Neither Party to this Contract shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
12. No Agency or Partnership: This Contract shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Contract.
13. Notices and Communications
13.1 We may revise these Terms and Conditions from time to time. Revised Terms and Conditions will apply to the use of our Software from the date the new version is published on our Website. Please check our Website regularly to ensure you are familiar with the current version.
13.2 All notices/communications shall be sent to us by email via the Support link on the Website. Such notice will be deemed received the day of sending if the email is received on a business day and on the next business day if the email is sent on a weekend or public holiday.
13.3 We may from time to time ask you to provide a testimonial or case study. You can choose to do so, in which case we may use your name for marketing purposes. You can, of course, decline to do so at any time.
13.4 All Authorised Users will be sent regular tips and advice on how to make the most of the Software. Users can choose to unsubscribe at any time by clicking the link at the bottom of the email.
14. Other Important Terms
14.1 We may transfer (assign) our obligations and rights under these Terms and Conditions (and under the Contract, as applicable) to a third party (if for example, if we sell our business). If this occurs you will be informed by us in writing. Your rights under these Terms and Conditions will not be affected and our obligations under these Terms and Conditions will be transferred to the third party who will remain bound by them.
14.2 You may not transfer (assign) your obligations and rights under these Terms and Conditions (and under the Contract, as applicable) without our express written permission.
14.3 Each Party acknowledges that, in entering into this Contract, it does not rely on any representation, warranty or other provision except as expressly provided in this Contract. This Contract constitutes the entire Contract between you and us with respect to its subject matter and supersedes all proposals, representations, understandings and prior Contracts, whether oral or written, and all other communications between us relating to that subject matter.
14.4 The Contract is between you and us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions.
14.5 Any part of these Terms and Conditions found to be unlawful, invalid or otherwise unenforceable would be severed from our Contract. The validity and enforceability of the remaining parts of the Contract would not be affected.
14.6 If any rights under these Terms and Conditions are not exercised or enforced following a breach of contract by either party, this does not mean that either of us has waived our right to do so at a later date.
15. Law, Jurisdiction and Dispute Resolution
15.1 This Contract and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with the laws of England and Wales.
15.2 The Customer recognises that our business relies upon the protection of our Intellectual Property Rights (“IPR”). In the event of a breach or threatened breach of IPR, we will be caused irreparable damage and may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of our IPR.
15.3 With respect to all other disputes which are not IPR related, the following clauses 15.4 – 15.6 shall apply.
15.4 Where there is a dispute, the aggrieved Party shall notify the other Party in writing of the nature of the dispute with as much detail as possible about the issue. A senior representative of each of the Parties shall meet in person or communicate by telephone within 7 days of the date of the written notification in order to reach an agreement about the nature of the issue and the corrective action to be taken by the respective Parties.
15.5 If the Parties cannot resolve a dispute in accordance with clause 15.4, they shall seek to resolve the dispute or difference amicably using an Alternative Dispute Resolution (“ADR”) procedure acceptable to both Parties before pursuing any other remedies available to them. If either Party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute is not resolved to the satisfaction of both Parties within 30 days after it has arisen, the matter shall be settled in accordance with the procedure below.
15.6 If the Parties cannot resolve the dispute by the procedure set out above, the Parties shall irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the purposes of hearing and determining any dispute arising out of this Contract.