Welcome to Cloudbeds’ Ambassador Referral Program (the “Program”). These Terms and Conditions (“Agreement”) set forth the terms and conditions under which Digital Arbitrage, Inc. dba Cloudbeds (“Cloudbeds”) offers the Program. By clicking “I Accept” on the sign-up page for this Program, you enter into this Agreement and warrant and represent that you are at least 18 years old and, if you are acting on behalf of an entity, that you are authorized to enter into this Agreement on behalf of that entity. When we use the word “you” or similar words in this Agreement, we mean both you and the entity on whose behalf you are acting.
This Agreement supersedes any prior agreement that you may have with Cloudbeds, including any agreement under Cloudbeds’ Ambassador Referral Program, by which you are paid compensation from Cloudbeds. With respect to any referrals you make after the Effective Date of this Agreement, the sole compensation you receive will be the compensation disclosed in the sign-up page or other documentation you receive in connection with this Agreement. Compensation and the terms and conditions applicable to prior referrals, as well as those related to any agreement under Cloudbeds refers customers to you, will remain unchanged.
2. Term and Termination
The term of this Agreement shall be for one year from the date you sign up (the “Effective Date”) and will automatically renew at the end of each one-year period for an additional period of one year. The initial term plus any renewal period shall be referred to herein as the “Term.” Either party may terminate this Agreement at any time by giving thirty (30) days’ notice, with or without cause. Any amounts due and any liabilities accrued prior to the termination date shall remain in place after termination, and all other obligations that by their nature appear to have been intended to survive the termination or expiration of this Agreement shall survive.
3. Sign-Up Pages and Modification
This Agreement incorporates the terms of any document or other material that is published by Cloudbeds, including any sign-up page located online. However, if the terms of any sign-up page contradict the terms of this Agreement, the contradicted terms of this Agreement shall govern. This Agreement also incorporates the provisions of any brand publication guidelines and style guides, payout guidelines, restricted activity rules, or other materials published by Cloudbeds and brought to your attention. Cloudbeds may amend the terms of this Agreement at any time by giving notice to you of any modifications. If you do not agree to the provisions of this Agreement, as modified, you may terminate within thirty (30) days after such notice. If you do not terminate, you will be deemed to have accepted the terms as modified. This Agreement may not be modified in any other way, other than by written agreement signed by both parties. Cloudbeds’ employees and agents are not authorized to amend this Agreement or waive any of its provisions.
4. Exclusivity and Restrictions
You acknowledge that Cloudbeds has a legitimate interest in preventing you from using the knowledge you gain and contacts you develop in that process on behalf of a competitor of Cloudbeds or other third party. Therefore, you agree that during the Term, and for a period of six months after its termination, you will not promote any other program similar to the Program for any third party, whether or not you are compensated for such promotion. Notwithstanding the foregoing, if you are professional consultant or otherwise make referrals in your normal course of business, you may make similar referrals of potential customers on behalf of third parties, provided that you first disclose to us the names of the business on whose behalf you intend to make such referrals. We may terminate this Agreement with immediate effect if we determine in our sole discretion that such any such referrals constitute an unacceptable business conflict.
Employees and contractors of Cloudbeds and members of their families are not eligible to participate in Cloudbeds’ Ambassador Referral Program, and no compensation under this Agreement will be due to them at any time.
You may not engage in any conduct that Cloudbeds deems, in its sole and absolute discretion, to be harmful to Cloudbeds’ interests, and no compensation will be due you if you engage in such conduct. As examples, and not by way of limitation, the following activities will be deemed harmful to Cloudbeds’ interests:
1. Tampering with the entry process or other factors which may cause unfair advantage in the promotion or the operation of the Cloudbeds website;
3. Acting in a disruptive manner or with intent to annoy, abuse, threaten or harass any other person.
4. Using any inappropriate form of promotional, marketing, or advertising activity with your link or site, which includes use of any misleading hyperlinks or URL’s (including URL’s that include Cloudbeds’ name), and making any false, misleading, or disparaging representations or statements with regard to Cloudbeds;
5. Engaging in any unfair or deceptive trade practice involving Cloudbeds;
6. Participating in any promotion, advertising, marketing, or sale of any imitation of Cloudbeds products;
7. Including or providing for in any site any page, screen, or social media platform that contains content that: advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes or engages in illegal activities, violates intellectual property rights of third parties, or contains or promotes deceptive information; and
8. Impersonating any Cloudbeds employee;
5. Referral Process, Awards, Conduct of Business
5.1 Referrals Process. The referral process and awards shall be as described in a sign-up page. Notwithstanding anything contained in a sign-up page, if Cloudbeds determines in its sole discretion that a potential customer has been contacted by more than one participant in the Program or has previously been approached directly by Cloudbeds, it may take such action as will equitably compensate the parties, such action being in Cloudbeds’ sole and absolute discretion.
5.2 Awards. Awards shall be paid as described in a sign-up page. You are solely responsible for any taxes that arise out of or are related in any way to fees paid to you under this Agreement, and you acknowledge that Cloudbeds may issue and file with any governmental authority any tax document that are required by applicable law.
5.3 Conduct of Business. Cloudbeds shall be free in its sole and absolute discretion (1) to pursue or abandon sales opportunities, (2) to sign or decline to sign agreements, (3) to negotiate the terms of sales agreements, (4) to offer discounts or sales incentives, and (5) to conduct business with affiliates or other business partners in any fashion it wishes.
5.4 Expense Reimbursement. Neither party will be responsible for any expenses incurred by the other party for any reason unless pre-approved in writing by the party from whom reimbursement is requested.
6. License and Sales Representations, Third-Party Software
During the Term, Cloudbeds grants to you a worldwide, limited, non-assignable, royalty-free, non-exclusive license to use Cloudbeds’ name, logos, trademarks and service marks, for the sole purpose of obtaining new sales leads. Cloudbeds may require you to cease any specific use in its sole discretion and at any time. You may not make any representations or warranty to any potential customer regarding Cloudbeds’ services or software beyond those publicly made by Cloudbeds.
Cloudbeds uses third-party services and software to provide the Program. You agree to comply with the terms and conditions or other requirements of any such third-party, including without limitation any end user license agreement referenced on any sign-up page.
Each party (the “Receiving Party”) acknowledges that it may be provided with or otherwise learn confidential and/or proprietary information of the other party (the “Disclosing Party”) (including without limitation the Disclosing Party’s intellectual property and certain information and materials concerning the Disclosing Party’s business, plans, customers, technology, services and products) that is of value to the Disclosing Party, which is identified as confidential at the time of disclosure or which would be considered confidential by a reasonable party in the industry (“Confidential Information”). All Confidential Information remains the property of the Disclosing Party. Other than with the express written consent of the Disclosing Party, during the Term of this Agreement, and for a period of three years after termination (with respect to non-trade secret Confidential Information of the Disclosing Party), and in perpetuity (with respect to trade secrets of the Disclosing Party), the Receiving Party agrees not to disclose or exploit Confidential Information of the Disclosing Party. The Receiving Party may disclose the Confidential Information of the Disclosing Party only to its attorney, accountant and employees who need to know such Confidential Information for purposes permitted under this Agreement. The Receiving Party will protect the Confidential Information of the Disclosing Party in the same manner the Receiving Party uses to maintain the confidentiality of its own confidential information but in no event with less than reasonable care. The Receiving Party will give immediate notice to the Disclosing Party of any known unauthorized disclosure or exploitation of the Confidential Information and agrees to cooperate with the Disclosing Party in remedying such unauthorized use or disclosure. A party who discloses or exploits the Confidential Information of the other party without written authorization to do so shall be liable to such other party for all claims arising from such unauthorized disclosure or exploitation. Each party agrees to return the other party’s Confidential Information upon request therefor. The foregoing confidentiality obligations do not extend to Confidential Information which (i) becomes publicly available without the fault of the Receiving Party; (ii) is rightfully obtained by the Receiving Party from a third party who has the right to transfer such information without obligation of confidentiality; or (iii) was lawfully in the possession of the Receiving Party at the time of disclosure, without restriction on disclosure. Each party agrees that injunctive or other equitable relief will be available to enforce these confidentiality provisions, without the necessity of posting a bond, cash or otherwise. If any restriction or covenant in this Agreement is held by any court to be unenforceable, then a lesser restriction will be enforced in its place and the remaining restrictions in this Agreement will continue to be enforced according to their terms.
8.1 Independent Contractors. This Agreement does not create any relationship of association, partnership or agency between the parties, and neither party is authorized to bind the other party for any purposes or to make any representations or warranties on the other party’s behalf. Notwithstanding the fact that you may use Cloudbeds’ name and other intellectual property as specified in this Agreement, you are not related to Cloudbeds, and you shall be responsible as an independent contractor for your own employees, subcontractors, and any and all liabilities you incur.
8.2 Notices. Any notice under this Agreement addressed to the party at the address below or at such other address as the party may designate by written notice to the other party, shall be deemed given: (i) when actually delivered by hand, or via express courier service (with proof of delivery), or (ii) when mailed by registered or certified mail, return receipt requested, postage prepaid. Notwithstanding the foregoing, Cloudbeds may give you notice by sending an e-mail to the e-mail address you use while accessing the Program.
8.3 Assignment. You may not assign this Agreement to any third party without Cloudbeds written approval, which may be denied in its reasonable discretion. Cloudbeds may freely assign this Agreement.
8.4 Warranty Disclaimer and Limitation of Liability. CLOUDBEDS MAKES NO REPRESENTATION WHATSOEVER REGARDING THE PROGRAM, ITS SOFTWARE, OR ANY OTHER MATTER OR ISSUE RELATED TO THIS AGREEMENT. IN PARTICULAR, CLOUDBEDS DISCLAIMS ANY WARRANT OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT. THE PROGRAM AND ANY RELATED SOFTWARE ARE PROVIDED “AS-IS” AND ‘AS-AVAILABLE. In no event will Cloudbeds be liable to you for any loss of profits, or for any special, punitive, incidental, indirect or consequential damages of any kind, whether or not foreseeable, whether based on breach of contract, tort (including negligence), product liability, or otherwise, even if it has been advised of the possibility of such damages. In addition, in no event will Cloudbeds’ liability to you under or relating to this Agreement exceed the amount owed or paid by Cloudbeds to you during the three-month period preceding any claim asserted by you or $5,000, whichever is less. You acknowledge that the foregoing limitation of liability is an essential element of this Agreement and that in its absence the economic terms of this Agreement would be substantially different.
8.5 Indemnification. Each party (the “Indemnifying Party”) shall, at its own cost and expense, indemnify, defend and hold harmless the other party, and its officers, directors, employees, agents and affiliates (collectively, the “Indemnified Parties”), from and against any liabilities, demands, judgments, settlements, or losses, including but not limited to attorney fees and court costs, arising out of or relating to (1) any third party claim that any patent, trademark, service mark, or copyright of the Indemnifying Party which is used within the scope of this Agreement infringes or misappropriates such third party’s intellectual property, provided that the Indemnifying Party is immediately notified in writing of such a claim and the failure to give immediate notice causes actual prejudice to the Indemnifying Party; (2) any third party claim that the Indemnifying Party has violated any governmental law, rule, or regulation; (3) any third party claim alleging that the Indemnifying Party committed any grossly negligent, fraudulent, or deceptive act or omission, including without limitation making unauthorized statements, representations, or warranties, about the other party’s software or services; and (4) any third party claim arising out of or related to an allegedly negligent act or omission of the Indemnifying Party. The Indemnifying Party shall have the right to control the defense of all such claims, lawsuits, and other proceedings and in no event shall the Indemnified Parties settle any such claim, lawsuit, or proceeding without the Indemnifying Party’s prior written approval. The Indemnifying Party shall have no liability for any claim under this Section if the claim for infringement is based on the use of a superseded or altered version of the material including the intellectual property in circumstances where such infringement could have been avoided by use of the latest unaltered version of such material available as an update.
8.6 Governing Law; Attorney’s Fees. This Agreement shall be governed by the laws of the state of California, U.S.A., without respect to any conflict of laws provisions. All disputes and claims between the parties (”Disputes”) shall first be submitted to an authorized officer of each party for prompt resolution. Any unresolved Disputes shall be filed and litigated only in, and the parties hereto expressly submit to the jurisdiction of, any federal or state court of competent jurisdiction in the state of California, U.S.A. EACH PARTY WAIVES ITS RIGHT TO TRIAL BY JURY. The prevailing party in any proceeding to enforce this Agreement shall be entitled to recover its reasonable attorney’s fees and costs, whether or not the proceeding is prosecuted to a final judgment or determination; provided, however, that if there is no clear prevailing party, such fees, costs and expenses shall be borne as determined by the court or other decision-maker.
8.7 Intellectual Property Ownership. Each party acknowledges and agrees that that the other party shall retain and own all right, title and interest and all intellectual property rights (including but not limited to copyrights, trade secrets, trademarks and patent rights) in and to the other party’s software and services, and that nothing contained herein shall transfer or convey to a party any ownership right, title or interest in or to the other party’s software or services, or to any copy thereof or any license right with respect to same not expressly granted herein.
8.8 Further Miscellaneous. Each party agrees: (i) the headings are for convenience and are not part of this Agreement; (ii) a waiver of any provision of this Agreement must be in writing and signed by both parties, and no course of conduct shall be deemed a waiver; (iii) there are no third party beneficiaries to this Agreement; (iv) this Agreement may be executed in counterparts; (v) this Agreement constitutes the entire agreement between the parties as of the Effective Date and may only be modified by an instrument in writing signed by both parties, except as set forth herein; (vi) any illegal, void or invalid provision can be severed from this Agreement without impairing or affecting any remaining provisions; (vii) this Agreement will bind and inure to the benefit of each party and their respective successors and assigns; and (viii) this Agreement will not be construed more strongly against the drafter of it, and any rules of construction to the contrary are hereby specifically waived.