CLOUDBEDS TERMS AND CONDITIONS

1. ACCEPTANCE OF TERMS. Digital Arbitrage, Inc., which owns and operates www.Cloudbeds.com (“Company”) and you enter into this agreement subject to the following Terms and Conditions (“Terms”).  The terms govern your contractual relationship with Company, including but not limited to your use of Company’s website, www.Cloudbeds.com (“Website”), as well as your use of the Services (defined below).  They create legally binding obligations, and you should 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.  This Agreement shall apply for an indefinite term and may be terminated by either party by providing thirty days’ notice to the other party.

2. COMMUNICATIONS.  When you visit the Website or send e-mails to us, you are communicating with us electronically.  You consent to receive communications from us electronically.  We will communicate with you by e-mail or by posting notices on the Website.  You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.  Any comments, materials, or letters sent by you to Company, including, without limitation, questions, comments, suggestions, criticisms or the like (“Received Materials”), may be deemed by Company to be non-confidential and free of any claims of proprietary or personal rights.  Company shall have no obligation of any kind with respect to such Received Materials and Company will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Received Materials without limitation or restriction.  Furthermore, Company is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information or ideas, without compensation or any other obligations to anyone, including you.  You agree that any information you receive from Company related to Company’s operations, plans, customers, methods, business, finances, procedures, and other information that would reasonably be considered confidential shall be considered Confidential Information and that you will not disclose any Confidential Information to third parties during the term of this Agreement and for a period of five years after its expiration.

3. DESCRIPTION OF SERVICES AND PRODUCTS.  Company provides users with a rich collection of services through the Website that allow users to manage properties in the travel industry, promote those properties, and distribute information related to availability and booking through the Website (“Services”).  For purposes of clarity, the term “Services” includes all functionality made available through the Website, such as the help desk system, connectivity API’s, and related support services.  Any new features which augment or enhance the current Services, including the release of new features or products, is also governed by the Terms.  Company reserves the right at any time to change or discontinue the Services with or without notice.  You agree that Company shall not be liable to you or to any third party for any modification, suspension, or discontinuance of any of the Services.  If a service or product is listed on the Website at an incorrect price or with incorrect information, we reserve the right to refuse or cancel orders placed for that service or product, whether or not the order has been confirmed and even if your account has been charged (in which event a credit will be issued to your account in the amount of the charge).

Our creation or transmission of an order confirmation does not signify acceptance of your order, nor constitute a binding confirmation of an offer to sell any service offered on the Website, and we reserve the right to accept or decline your order for any reason. We may contact you and require additional information from you before we grant such approval.  Services on the Website are offered for sale only to end user customers and not for resale. We reserve the right to refuse, cancel or seek the return of any services or products that are purchased in violation of our policies and restrictions. You are responsible for any taxes imposed on the sale or use of Services and applicable taxes may be added to the amount charged for Services purchased on the Website.

4. ACCESS AND FEES.  You are responsible for obtaining access to the Services, which may require transacting with third parties, such as internet providers.    Fees charged for the Services are as disclosed on the Website.  Your use of the Website is subject to timely payment of such fees.

5. LICENSE AND SITE ACCESS.  Company hereby grants you, subject to the Terms, a limited non-exclusive, non-sublicensable, non-transferable, license to use the Services.  You may not download any portion of the Website or use of any Services other than for your own personal use.  You may not use any data mining, robots, or similar data gathering tools or otherwise exploit your access to the Services for any commercial purpose.  You may not use any of the trademarks, logos, or other proprietary graphics without express written permission, which may denied in Company’s absolute discretion.  Company’s logos and product and service names are trademarks of Company.  All other trademarks appearing on the Website or in connection with the Products or Services are trademarks of their respective owners, and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made.  You may not attempt to disassemble, decompile, reverse engineer, or otherwise modify or attempt to access the software, related code, or any portion of the Services.

6. YOUR ACCOUNT.  You are responsible for maintaining the confidentiality of any account information, including your login and password, and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password.  Company reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion. You are also solely responsible for the accuracy and currency of the data entered into the Services under your user account.  You agree to indemnify and hold Company harmless from and against any claim related to content, accuracy, or currency of the information you provide through the Services.

7. LINKS.  Company may provide links to other websites or resources.  Because Company has no control over such sites and resources, you acknowledge and agree that Company is not responsible for the availability or content of such external sites or resources.  You may create a link to the Website so long as the link does not portray Company or its products or services in a false, misleading, derogatory, otherwise offensive manner.  You may not use any of Company’s logos, trademarks, or other proprietary graphics as part of your link.

8. COPYRIGHT and TITLE.  The Services and all copyrights, trade secrets and other proprietary rights therein, including any derivative work, are, and will remain the sole property of Company, regardless of the use made by you; and are protected by certain United States and international copyright laws and trademark laws.  The Terms confer no title of ownership in the Services, other than in the products you purchase, and are not a sale of any rights in the Services, including any intellectual property rights related thereto.

9. WARRANTY.  Company warrants that the Services and all elements thereof do not infringe the intellectual property rights of any third party and agree to hold you harmless and indemnify you with respect to any final judgment obtained by a third party based on a claim that the Services infringe on the intellectual property rights of such third party.

10. DISCLAIMER OF WARRANTY.  Except as expressly set forth in SECTION 9 of THIS AGREEMENT, THE services, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STatutory, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.     Company does not warrant or guarantee the availability, accuracy, or truthfulness of any information provided by or with respect to a hotelier or other provider of services accessed through the Services, including information leading to overbooking, and you agree to hold company from and against any such claims.  WITHOUT LIMITING THE FOREGOING, company DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE website and/or delivery of the services SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some jurisdictions may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Licensee.  Any warranties made in this Agreement are for your benefit only.

11. LIMITATION ON LIABILITY.  IN NO EVENT WILL COMPANY, ITS SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES OR PRODUCTS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT AND USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU DURING THE 12-MONTH PERIOD PRIOR TO SUCH CLAIM ARISING.  THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.  BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY.

12. GOVERNING LAW AND JURISDICTION.  This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to the United Nations Convention on the International Sales of Goods.  The Parties hereby submit to the exclusive jurisdiction of the state and federal courts located in the State of California.

13. ATTORNEY FEES.  In case of an action to enforce any rights or conditions of the Terms, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.

14. ENTIRE AGREEMENT; AMENDMENT.  The Terms are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.

15. NON-WAIVER.  No waiver of any provision of the Terms shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver.  Failure to enforce any provision of the Terms shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.

16. NO THIRD-PARTY BENEFICIARIES.  Nothing in the Terms, express or implied, is intended to confer on any person, other than the parties to the Terms, any right or remedy of any nature whatsoever.

17. SEVERABILITY; BINDING EFFECT.  If any provision of the Terms shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of the terms shall not be impaired.  The Terms shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and assigns.

18. FORCE MAJEURE.  Company will not be liable for, or be considered to be in breach of or default under the Terms on account of, any delay or failure to perform as required by the Terms as a result of any cause or condition beyond Company’s reasonable control.

19. DEFENSE AND INDEMNIFICATION.  In addition to the other provisions of this Agreement, you agree to defend Company from any actual or threatened third party claim arising out of or based upon your use of the Services, or of your breach of any of the provisions of the Terms.  You agree to indemnify Company against: (a) all damages, costs, and attorneys’ fees finally awarded against Company in any proceeding under this section; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Company in connection with the defense of such proceeding (other than when you have accepted defense of such claim); and (c) if any proceeding arising under this section is settled, any amounts to any third party agreed to by you in settlement of any such claims.