Cloudbeds Amplify Terms of Service
Cloudbeds Distribution Inc. dba “Cloudbeds Amplify” and you (or Property, as identified in the Agreement that references these Cloudbeds Amplify Terms of Service) are parties to these Cloudbeds Amplify Terms of Service (the “Terms”). These Terms, together with the Agreement, govern the distribution of
Ad Content on the Cloudbeds Amplify Network (each as defined below).
These Terms incorporate by reference and include the Cloudbeds Distribution Terms of Service available at www.cloudbeds.com/terms/distribution/ (the “Terms of Service”. Any capitalized terms not defined in these Terms or in the Agreement will have the meaning as defined in the Terms of Service. They create legally binding obligations, and you must review them carefully before accessing the Website or using any of the Services. If you are accessing the Website on behalf of a company or other entity, you represent and warrant that you are authorized to bind such entity to the provisions hereof. The Terms may be revised from time to time without notice, and the then-current version of the Terms will apply to any transaction or action or omission of you or the Company. The Terms shall apply for an indefinite term and may be terminated by either party by providing thirty days’ notice to the other party.
Please read these Terms carefully, because they, together with any commercial agreement, insertion order or other contract entered into by you and Cloudbeds and pursuant to which Cloudbeds provides you with any Services (an “Order”), govern your use of the Services. Any Such Order entered into by you and Cloudbeds is subject to the Agreement, including these Terms.
This Agreement supersedes any prior agreement that you may have with Cloudbeds, including any agreement under Cloudbeds Demand or Cloudbeds Demand evaluation and pilot program.
By using any portion of the Services, you agree to the terms and conditions of the Agreement, including these Terms.
“Ad Content” means any content which promotes Property’s products and/or services, including, but not limited to, rates and availability, images, graphics, descriptive text, attributes, data, links or other digital objects or code.
“Cloudbeds Amplify Network” means websites and advertising partners that are not owned, operated, or controlled by Cloudbeds, but on which Cloudbeds has a contractual right to serve Ad Content and target users on behalf of Property.
Property will provide Cloudbeds Amplify with rates and availabilities that are the same or better than those provided by Property to any other direct or indirect channel (“Price and Availability Integrity”). Property also commits to provide Cloudbeds Amplify with any promotional offers or discounts made available to any other direct or indirect channel. Price and Availability Integrity will be measured by comparing rate and availability conditions for the same accommodation, promotions for the same accommodations, same room types, same dates, same bed type, same number of guests, same or better amenities and add-ons, same or better restrictions and policies such as reservation changes and cancellation policy as made available by the property on Cloudbeds Amplify vs any other channel.
Property confirms that Cloudbeds Amplify is the only advertiser used to drive direct or indirect traffic for the Property, including through any other direct or indirect booking channels. Property shall not use another party to run concurrent digital advertising during the term of this agreement.
3. AD CONTENT
Property will provide Cloudbeds with the Ad Content, and if applicable, other Property materials reasonably requested by Cloudbeds, in order to enable Cloudbeds to provide the Services to Property. All Ad Content provided by Property shall adhere to any then in effect advertising content guidelines of Cloudbeds. Property is solely responsible for the Ad Content or other content provided by Property to Cloudbeds and will indemnify, defend, and hold harmless Company from any actual or threatened third party claim arising out of or based upon the Ad Content or other content provided by Property to Cloudbeds. Cloudbeds reserves the right, in its sole discretion, to reject or remove any Ad Content from the Cloudbeds Network at any time. Property hereby grants Cloudbeds a non-exclusive, perpetual, fully paid up, royalty free, transferable, worldwide license, with a right to sublicense, to use, reproduce, distribute copies of, modify, create derivative works based upon, publicly perform and publicly display and otherwise exploit the Ad Content, and if applicable, any other Property content provided to Cloudbeds or Property content (e.g. logos, marks, etc.) which is publicly available on Property’s website(s), to be used: (i) as necessary to provide the Services; (ii) to serve the Ad Content on Cloudbeds Networks; and (iii) if applicable, in order to create advertisements for Property and Property business, to be served on Cloudbeds Networks (“Cloudbeds Created Content”). Created Content (and non-material variations thereof), will constitute approval by Property. Property agrees that Cloudbeds may: (i) edit Ad Content provided by Property with respect to Ad Content size and format; and (ii) test performance of variations of Ad Content (e.g. exterior images vs. room images) to optimize performance of the Services.
4. DELIVERY OF AD CONTENT.
Cloudbeds will use commercially reasonable efforts to serve the Ad Content on the Cloudbeds Network. The placement of such Ad Content throughout the Cloudbeds Network and priority and frequency with which the Ad Content is served will be at Cloudbeds’ sole discretion. Cloudbeds reserves the right to limit, in its sole discretion, the provision and quantity of any feature or part of the Services to any person, entity or geographic area. Cloudbeds also reserves the right to modify, amend, suspend or interrupt the Services or the Cloudbeds Network or any part thereof, at any time and for any reason, with or without notice to Property and without liability to Property or any third party.
Cloudbeds does not control the context in which Ad Content is displayed. Property acknowledges and agrees that: (i) Ad Content may be displayed next to Property’s direct or indirect competitors; and (ii) that while Cloudbeds uses commercially reasonable efforts to ensure that the Cloudbeds Network does not include websites that are of a pornographic, defamatory, obscene or illegal nature, Cloudbeds gives no guarantee or warranty of any kind that Ad Content may not be displayed in such context. Cloudbeds expressly disclaims any and all liability in connection therewith and Property hereby waives any legal or equitable rights or remedies Property may have against Cloudbeds with respect thereto. As Property’s sole and exclusive remedy in such case, Cloudbeds will, upon Property’s written request, promptly remove such Ad Content. In addition, there is no guarantee whether the Ad Content will be served at all and, if served, whether such Ad Content will lead to any clicks, leads or actual acquisitions.
5. BOOKINGS TRACKING; REPORTS; COMMISSIONS; INVOICING.
The services related to the distribution of Ad Content on the Cloudbeds Amplify Network governed by these Terms will be deemed Services for all purposes under the Terms of Service. To enable Cloudbeds to provide the Services, Cloudbeds will provide Property with tracking pixels (the “Pixels”) for Property to implement on its designated website(s), as well as instructions for implementation. Property will secure any necessary authorizations for implementation and use of the Pixels. Cloudbeds may provide Property with updated Pixels, and Property will promptly insert or implement such updated Pixels as instructed by Cloudbeds. Property will not modify, or attempt to modify such Pixels. Property will comply with any applicable laws and self-regulatory principles relating to the use of Pixels, including, where applicable, providing notice to and receiving consent from users when such user’s data is being collected by the Pixels.
Using the Services, Cloudbeds will track guests who visit the Property’s website(s) as a result of Cloudbeds’ provision of the Services (the “Cloudbeds Amplify Guest ”). This information is available in the Property’s account where Property can view Cloudbeds Amplify Guests activity in a report format (the “Reservations by Source Report ”).
Property will be responsible for paying Cloudbeds all Commissions arising under each Agreement in accordance with the payment terms of the applicable Agreement. The aggregate Commissions per reservation is equal to the multiple of (i) the number of nights paid at the property by the guest, (ii) the room price (e.g. in Cloudbeds) per room per night (excluding sales taxes and such other applicable national, governmental, provincial, state, municipal or local taxes or levies (the “Taxes”)) and such other extra’s, fees and surcharges which are included in or part of the offered rate at the time of the booking (iii) the number of booked rooms by the Guest, and (iv) the commission percentage set out in the Agreements.
Unless otherwise agreed by the parties, refundable cancellations and “no shows” (“Qualifying Exclusions”) will not be subject to Commission. Cancellations and “no shows” that are not refundable and not refunded or generate a partial charge are subject to Commission.
Cloudbeds will invoice Property on a monthly basis for the Commissions arising from stays during the prior month. Invoices will be sent to the email address provided by Property in the Property Account on or about the tenth (10th) day of each calendar month. All invoices will be in the currency specified in the Agreement and exclusive of any sales, value added or similar tax which will be payable by Property at the time and in the manner required by law. Any disputes regarding the accuracy of the invoice must be submitted to Cloudbeds in writing within ten (10) days of receipt of such invoice.
The Reports and Commissions are the Confidential Information of Cloudbeds.
Property will pay Cloudbeds within 14 days of the invoice date Payment will be made using the method specified in the Property Account.
Late payment may result in suspension of your campaigns. In the event of late payment, Cloudbeds will also be entitled, but not obligated, to charge interest on amounts overdue, from the due date until the date of actual payment, at a rate of 1.5% per month or the highest rate allowed by applicable law, whichever is lower, whether before or after any judgment.
The Property shall upon first request of Cloudbeds pay a deposit which shall be equal to the anticipated Commissions for 3 months or such other amount as determined by Cloudbeds at its discretion (the “Deposit”). The Deposit will be held by Cloudbeds Amplify as a security for performance of the payment obligation of the Property under the Agreement. Upon termination of this Agreement, the Deposit or any balance thereof after deducting outstanding Commission, shortfall payment and other costs due to Cloudbeds will be repaid to the Property within 30 days after the last Commission cycle. The amount of the Deposit shall in no way limit or cap the liability of the Property under this Agreement. The Deposit shall not bear any interest.
7. PRIVACY NOTICE.
In addition to the Property’s obligations under the Terms of Service, Property will include a privacy notice on its website(s) that complies with all applicable laws (including GDPR) and industry self-regulatory principles, and clearly states that when a user visits the Property’s website(s), Property and/or third parties may use pixel tags and place cookies on the user’s device that track such user’s behavior on that website and other third-party websites.
8. COLLECTION AND USE OF DATA.
9. INTELLECTUAL PROPERTY AND CONFIDENTIALITY.
All right, title and interest in and to the Services and all materials and methods used to provide the Services are owned by Cloudbeds or its licensors, as applicable. All right, title and interest in and to the Ad Content is owned by Property. Property agrees that Cloudbeds may use the Property’s name, trademarks, and/or logos: (i) on Cloudbeds’s website; and (ii) in communications about its business partners.
“Confidential Information” means any information disclosed by either Party to the other Party in connection with this Agreement (each a “Discloser” or “Recipient” of Confidential Information, as applicable). Confidential Information includes all information that is communicated orally, or that is in written, electronic, graphic, machine readable or in other tangible form, provided that such information is identified as “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, or that it should be reasonably known under the circumstances as being confidential. Confidential Information will include all of Cloudbeds’ technology, Services, software, and data, and any modifications or extensions to any of the foregoing, without the need for any marking. Additionally, the terms and conditions of this Agreement, including all pricing information, will also be the Confidential Information of Cloudbeds without the need for any marking.
Notwithstanding the foregoing, Confidential Information will exclude any information that (i) was at the time of disclosure, or later becomes generally known and available in the public domain, through no fault of the Recipient; (ii) was known to the Recipient at the time of disclosure; (iii) is publicly disclosed with the prior written approval of the Recipient; (iv) was, or is later independently developed by the Recipient without any use of the Discloser’s Confidential Information; or (v) becomes known to the Recipient from a source other than the Discloser and not in violation of the Discloser’s rights.
Obligations. With respect to any Confidential Information disclosed under this Agreement by Discloser, (a) Recipient will treat such Confidential Information as confidential and will handle it using at least the same procedures and degree of care which it uses to prevent the misuse and disclosure of its own confidential information of like importance, but in no event less than reasonable care, (b) Recipient will only use such Confidential Information as permitted under this Agreement and only to the extent necessary, and (c) Recipient will not disclose any such Confidential Information to any of its employees, consultants or other individuals or entities except to the extent necessary for the purposes of this Agreement and subject to confidentiality and nonuse obligations at least as protective of the Discloser as those set forth in this Agreement (in which case Discloser will remain responsible for any noncompliance by such employees, consultants or other individuals or entities). Property further agrees to keep confidential the terms of this Agreement. Property will not reverse engineer, disassemble or decompile any Subscription Services or other technology made available by Cloudbeds under this Agreement, except to the extent that this clause is not enforceable under applicable laws.
10. REPRESENTATIONS AND WARRANTIES.
Property represents and warrants that: (i) it will comply with all applicable local, state, national and international laws, including, but not limited to, laws governing intellectual property and other proprietary rights, data protection and privacy, as well as U.S. export laws and regulations; (ii) it has any necessary authorizations to: (a) access the designated website(s), (b) insert or implement the Pixels on the designated website(s), or (c) use the Pixels previously installed on the designated website; and (iii) the Ad Content and any other content provided by Property to Cloudbeds: (a) does not and will not infringe, violate or misappropriate any third-party rights, including any patent, trademark, trade secret, copyright, right of publicity, or any other intellectual property or proprietary right; and (b) complies with any then in effect advertising content guidelines of Cloudbeds and Property’s posted privacy notices. If you are a third party signing an Agreement on behalf of a property who will be identified as a Cloudbeds Property in such Agreement, you represent and warrant: (i) that you are authorized to sign the applicable Agreement on behalf of the ultimate Cloudbeds Property; and (ii) you will assume liability for all invoices issued pursuant to the applicable Agreement in the event the Cloudbeds Property does not timely pay such invoices.
11. TERM AND TERMINATION; EFFECT OF TERMINATION.
The Terms shall remain in effect for the duration of the Agreement into which they are incorporated. Unless otherwise specified in an Agreement, either party may terminate such Agreement (i) without cause upon thirty (30) days’ prior written notice, which notice may be given by electronic mail to email@example.com; or (ii) with immediate effect by written notice if the other party is in material breach of its obligations and fails to remedy within five (5) days of receipt of notice. The parties agree that the sections discussing payment obligations, privacy, confidential information, representations and warranties, indemnification, disclaimers, limitations of liability, applicable law and venue, and the general terms will survive expiration or termination.
Upon termination of an Agreement, Cloudbeds will deliver an invoice to Property reflecting (i) remaining reservations originated from or otherwise attributable to the Services and that will not be completed as a result of the termination of the Agreement; (ii) the industry standard cancellation rate of twenty percent (20%) (in the event of Property termination only). For clarification, based on (i) and (ii), Property will pay to Cloudbeds 80% of the Commissions corresponding to all reservations booked at that time and originated from or otherwise attributable to the Services. Such payment will satisfy the Property’s post-termination payment obligations. Payment is to be made in accordance with the payment terms set forth in the applicable Agreement.
In the event that Property is party to a sale, merger, transfer, or consolidation of its assets (collectively, a “Change of Control”), all Agreement (including these Terms and all payment obligations for future Ad Content Bookings) will be binding upon the applicable purchaser, successor, transferee or assignee of Property (the “New Owner”) upon completion of such transaction. Property shall use best efforts to notify Cloudbeds at least fifteen (15) days prior to the completion of a Change of Control, which notice shall include contact information for the New Owner. If you fail to notify Cloudbeds of the Change of Control, Cloudbeds reserves the right to invoice you for Ad Content Bookings driven prior to the Change of Control. Cloudbeds may freely assign the Agreement without the need for any consent.
13. RELATIONSHIP BETWEEN THE PARTIES.
Cloudbeds and Property are independent contractors. There is no joint venture, partnership, agency or fiduciary relationship existing between the parties and the parties do not intend to create any such relationship by this executing any Agreements.
14. LIABILITY LIMITATIONS, APPLICABLE LAW, AND VENUE.
This Agreement, including these Terms, is subject to the limitations of liability in Section 11 of the Terms of Service. For clarification, the liability limitations and all other provisions of Section 11 of the Terms of Service will also apply to this Agreement and to these Terms, and all references to “Services” in Section 11 of the Terms of Service will also apply to the Services governed by this Agreement and these Terms.
This Agreement, including these Terms, is subject to the applicable law and venue provisions in Section 12 of the Terms of Service. For clarification, applicable law and venue provisions of Section 11 of the Terms of Service will also apply to this Agreement and to these Terms, and will govern any disputes that may arise between you and Cloudbeds in connection with this Agreement and/or these Terms.
15. GENERAL PROVISIONS.
The Agreement executed between Cloudbeds and Property constitute(s) the complete and exclusive agreement(s) between Cloudbeds and Property with respect to the subject matter hereof, superseding and replacing any and all prior and contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter. In case of discrepancies between the provisions of the Agreement and the Terms, the provisions of the Terms prevail unless the Agreement specifically states that it supersedes specific provisions of the Terms. If any provision of an Agreement (including the Terms) is deemed invalid or for any reason unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions will remain in full force and effect. If either party chooses not to enforce strict performance of any right or provision under an Agreement (including the Terms), this will not be construed as a waiver of such right or provision.
Cloudbeds has established an advertising policy to govern advertising across the Cloudbeds network (the “Advertising Policy”). This Advertising Policy applies to all ad types and implementations of ads, including (but not limited to) display advertising, native advertising, search ads, video ads. Cloudbeds has established this policy on its own behalf, however please note Cloudbeds is also subject to the policies of our ad network partners. A copy of the Advertising Policy is available upon request