SafeGraph Reservations Terms of Service
1. General
1.1. These Terms of Service, together with the Privacy Terms (available here) and Reservation Service Policies (available here) (together, the “Terms of Use”) set out the terms and conditions on which SafeGraph, Inc. (a Delaware Corporation with corporate address 1580 N Logan St Ste 660 #53755 Denver, CO 80203-1942) (“SafeGraph”) provides the Service to Publishers. The Terms of Use are a contract between you and SafeGraph.
1.2. By submitting your application to SafeGraph and/or your continued use of the Service, you are confirming that either:
1.2.1. you are a Publisher intending to enter into the Agreement with SafeGraph in a personal capacity, and that you agree to comply with the Terms of Use; or
1.2.2. you are an employee, agent or subcontractor of a Publisher and to whom the Publisher has granted all necessary authorizations to agree to comply with the Terms of Use and to enter into the Agreement with SafeGraph, in each case on behalf of Publisher.
If you are unable to provide one of the above confirmations, you must not submit the application, or otherwise use or access the Service.
2. Definitions
2.1. In these Terms of Service, the following expressions have the following meanings:
2.1.1. “Affiliate Sites” means any and all internet websites, mobile websites, and mobile applications controlled or operated by Publisher and/or its corporate affiliates.
2.1.2. “Agreement” means the agreement between SafeGraph and Publisher which (i) is created on acceptance by SafeGraph of Publisher’s application in accordance with clause 3.1 and (ii) incorporates these Terms of Use.
2.1.3. “Applicable Laws” means all applicable statutes, common law, orders, regulations and regulatory policies, binding codes of practice and guidance notes, directives, notices or requirements of any Governmental Authority, as amended or superseded, including but not limited to:
2.1.3.1. US Federal Trade Commission rules and guidelines regarding collection, use and disclosure of data from or about End Users and/or specific devices;
2.1.3.2. any and all applicable federal, national, state or other privacy and data protection laws as may be amended or superseded from time to time (the “Applicable Data Protection Laws”);
2.1.3.3. economic sanctions and export control laws and regulations of the United States, Canada, and other jurisdictions, as applicable; and
2.1.3.4. any similar rules, guidelines or principles of any applicable jurisdiction.
2.1.4. “Booking Platform” means an entity providing an affiliate reservation service on behalf of multiple Merchants.
2.1.5. “Booking Platform Links” means the text links, graphical hypertext links and other linking code obtained via the Reservation Link Platform which provide direct access to the Booking Platform and which properly record referrals made to such Booking Platform.
2.1.6. “Booking Platform Materials” means the Booking Platform Links and Booking Platform Marks of a Booking Platform.
2.1.7. “Booking Platform Marks” means the website, name, word mark, and any other graphics, logos, designs, scripts, indicia and service names associated with such Booking Platform.
2.1.8. “Chargeback” as defined in Section 9.
2.1.9. “Commission” means a payment made by a Merchant or Booking Platform to SafeGraph resulting from Sales effected by the Service.
2.1.10. “End User” means a user of an Affiliate Site, including when such user engages a Merchant experience via a Booking Platform or otherwise through the Service.
2.1.11. “Governmental Authority” means (a) any international, foreign, federal, state, county or municipal government, or political subdivision thereof; (b) any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality or public body; or (c) any court or administrative tribunal of competent jurisdiction.
2.1.12. “Merchant” means a supplier of goods and/or services to End Users.
2.1.13. “Personal Data” means any information that relates to an identified or identifiable individual (and such term shall include, where required by Applicable Data Protection Laws, unique browser and device identifiers.)
2.1.14. “Publisher” means a person or other entity who is entitled to access and use the Service under these Terms of Service, or individuals representing such a person or entity.
2.1.15. “Publisher Revenue” means a Publisher’s share of a Commission, less any Chargebacks.
2.1.16. “Reservation Link Platform” means SafeGraph’s proprietary repository of Booking Platform Materials, made available by SafeGraph in whatever form, which Publishers can use to drive End User engagement of a Merchant’s goods or services for purposes of earning Publisher Revenue.
2.1.17. “SafeGraph Code” means computer code that enables the Service on an Affiliate Site.
2.1.18. “Sale” means a Merchant’s provision of an experience, goods, and/or services to an End User for valuable consideration following a referral of such End User from an Affiliate Site to a Booking Platform.
2.1.19. “Service” means authorized access to and use of the Reservation Link Platform, SafeGraph Code, and any other SafeGraph affiliation technologies that SafeGraph may make available for Publishers’ use.
2.1.20. “Usage Data” means information collected or created by the use of the Service.
3. The Service
3.1. Once SafeGraph approves a Publisher’s application, SafeGraph shall make available SafeGraph Code for Publisher to implement on the Affiliate Sites, which will facilitate Publisher’s End Users to make bookings with a Merchant through the applicable Booking Platform.
3.2. SafeGraph may approve or reject an application to register for the Service at its entire discretion, without obligation to provide reasoning. Publisher’s registration for the Service is specific to the Affiliate Site(s) set out in Publisher’s application and it may not use the Service in relation to any Affiliate Site other than those for which it has SafeGraph’s prior permission.
3.3. If Publisher wishes to use the Service in relation to any additional or alternative Affiliate Sites then Publisher may submit an additional application requesting that such Affiliate Sites be added to its list of approved affiliate sites (an “Additional Affiliate Site Request”), which SafeGraph may approve or reject at its entire discretion.
4. Booking Platforms
4.1. Publisher acknowledges and agrees that:
4.1.1. SafeGraph may from time to time, and with immediate effect and at its discretion, integrate or exclude any Booking Platform into or from the Service and each Booking Platform may from time to time, and with immediate effect and at its discretion, integrate or exclude any Merchant;
4.1.2. either SafeGraph or a Booking Platform may from time to time, and with immediate effect, vary Commission rates and/or Publisher Revenue as well as the way in which Commissions and/or Publisher Revenue are calculated;
4.1.3. a Booking Platform may from time to time, and with immediate effect, terminate its involvement in the Service in relation to all or some Publishers or request removal of a specific link, brand, product, or trademark from any or all Affiliate Sites;
4.1.4. SafeGraph may notify Publisher of any changes pursuant to clauses 4.1.1, 4.1.2 or 4.1.3 through means in its sole discretion. If SafeGraph notifies Publisher that it has received a notice from a Booking Platform requesting that Publisher remove links or references to the Booking Platform Materials from Affiliate Sites, Publisher agrees to remove the relevant links and/or references as soon as reasonably practicable (and in any event within two (2) business days of receiving the notice from SafeGraph). It is Publisher’s responsibility to check the Agreement to ensure that Publisher is up to date with such changes; and
4.1.5. SafeGraph shall be entitled to share Usage Data collected or received in connection with the performance of the Service, including reporting Publisher’s performance to Booking Platforms.
5. Use of the Service
5.1. In order to use the Service, Publisher:
5.1.1. must be approved by SafeGraph pursuant to Section 3, and use the SafeGraph Code only on Affiliate Site(s) approved by SafeGraph;
5.1.2. acknowledges and agrees that SafeGraph is entitled to monitor Publisher’s use of the Service to ensure it is being used by Publisher in accordance with this Agreement. In the event Publisher uses any third-party marketing link affiliation service directly alongside the Service, interference in the correct operation of the Service is possible, including interference with the calculation of Publisher Revenue, and SafeGraph’s warranties do not apply;
5.1.3. agrees, represents and warrants that it will comply with all Applicable Laws in its performance of this Agreement, including with respect to the use of the Service;
5.1.4. must comply with Reservation Service Policies (as amended by SafeGraph from time to time); and
5.1.5. must comply with the Privacy Terms (as amended by SafeGraph from time to time).
5.2. Publisher acknowledges and agrees that it and SafeGraph designate as a third-party beneficiary of this Section 5, including without limitation clause 5.1.4, any Booking Platform whose Booking Platform Materials are available through the Service and such Booking Platform shall accordingly have the right to directly enforce this Section 5 against Publisher with respect to its Booking Platform Materials.
5.3. Notwithstanding any other term or condition set out in the Terms of Use, SafeGraph reserves the right at any time in its sole discretion, without notice or liability to Publisher: (i) to refuse to permit Publisher to use the Service or any portion thereof; and (ii) to amend the measures taken to protect against inappropriate use of the Service.
6. Revenue
6.1. Publisher shall be entitled to its proportional share of Commissions, less any Chargebacks (i.e., “Publisher Revenue”), collected by SafeGraph resulting from Publisher’s use of the Services.
6.2. Publisher acknowledges and agrees that:
6.2.1. the calculation of Commissions due, if any, shall be performed by the relevant Booking Platform, each of which may use different methods for calculating Commissions;
6.2.2. a Booking Platform may refuse to pay or later adjust Commissions on a number of grounds in its sole discretion and that neither SafeGraph nor Publisher has any right to challenge or appeal a Booking Platform’s determination of Commissions due;
6.2.3. where a Merchant participates in more than one Booking Platform and both or all Booking Platforms participate in the Service, SafeGraph may in its sole discretion attribute the Commission to the Booking Platform of its choosing.
6.3. SafeGraph shall collect, calculate, and aggregate all Publisher Revenue due in connection with the Service. SafeGraph will take commercially reasonable steps to report collections, allocations, and disbursements of Commissions and Publisher Revenue to Publisher.
7. Payment Terms
7.1. SafeGraph will pay Publisher the Publisher Revenue for a given month, minus any Chargebacks made in accordance with Section 9 and any pending payments from Merchants and/or Booking Platforms, within 92 days after the end of the month in which such Publisher Revenue was earned or within 30 days of receiving payment from the Merchants and/or Booking Platforms, whichever is later.
7.2. Payments will be made in accordance with the payment method selected by Publisher in its application. While SafeGraph is responsible for the cost of making payments, Publisher is solely responsible for any fees charged by Publisher’s bank or other provider for receiving funds.
7.3. Publisher acknowledges and agrees that it is solely responsible for ensuring that its bank account details and all other necessary payment information on the application (“Payment Details”) are correct and up to date at all times, and that SafeGraph is not required either to verify the Payment Details or to notify Publisher if it discovers that the Payment Details are incorrect.
7.4. If SafeGraph is unable to pay Publisher Revenue to Publisher as a result of the Payment Details being out of date or otherwise incorrect, then Publisher shall be entitled to notify SafeGraph of the correct Payment Details and request payment of such invoice during the period ending on the last day of the calendar year in which the invoice was issued or, if earlier, the last day of the six month-period following the date of the invoice (“Claim Period”). If Publisher has not notified SafeGraph of the correct Payment Details and requested payment within the Claim Period then Publisher hereby unconditionally and irrevocably waives its right to payment of the relevant Publisher Revenue.
8. Taxes
8.1. Publisher is responsible for all taxes applicable to its use of the Services and performance under the Agreement, provided that taxes may be deducted or withheld from any payments made to Publisher hereunder as SafeGraph determines to be required by Applicable Laws, and payment to Publisher as reduced by such deductions or withholdings will constitute full payment and settlement to Publisher of such payment. Publisher may not charge and SafeGraph will not be liable for any income taxes imposed on Publisher or any other taxes or charges assessed against Publisher or associated with the operation of Publisher’s business. Prior to Publisher receiving any payments hereunder, Publisher will deliver all required tax documentation to SafeGraph in a manner reasonably requested by SafeGraph. Additionally, Publisher will provide SafeGraph with any forms, documents or certifications as SafeGraph may reasonably request.
9. Chargebacks
9.1. A Booking Platform may require SafeGraph to reverse the Commission paid in respect of a Sale (a “Chargeback”) in certain circumstances, including (but not limited) to the following:
9.1.1. the Sale was not a bona fide transaction;
9.1.2. the relevant goods or services were not utilized or returned by the End User; or
9.1.3. it is discovered that the transaction was fraudulent.
9.2. In the event of a Chargeback, the Publisher Revenue will be reduced accordingly. Publisher acknowledges and accepts that information regarding individual Chargebacks is not available and that Publisher has no right to appeal or otherwise challenge a Chargeback.
9.3. Publisher acknowledges and agrees that the Commissions remain subject to Chargebacks, and are therefore conditional, even after it has been paid to SafeGraph or Publisher.
10. Service Availability
10.1. SafeGraph will use commercially reasonable efforts to ensure that the Service works on Affiliates Sites but gives no warranty that the Service, which is otherwise provided “AS IS” and “AS AVAILABLE”, will achieve any minimum availability or response targets.
10.2. Publisher agrees to notify SafeGraph promptly of any Service availability or performance issues via e-mail to [email protected]. SafeGraph will use commercially reasonable efforts to correct any reported issues as soon as reasonably practicable.
11. Service Suspension
11.1. If SafeGraph has reasonable grounds to believe that Publisher is not using the Service in accordance with the terms of the Agreement, including in breach of the Reservation Services Policies, SafeGraph may, without limiting any other remedy available at law or in equity and without limiting Clause 5.2 hereof:
11.1.1. request Publisher either to remedy the breach or other default within such time frame as SafeGraph may reasonably require; or
11.1.2. if SafeGraph in its discretion considers that the breach or other default is sufficiently serious, or if Publisher has failed to respond to SafeGraph’s request under clause 11.1.1 to SafeGraph’s reasonable satisfaction, suspend Publisher’s access to the Service, in whole or in part, with immediate effect and without any obligation to provide prior notice (a “Service Suspension”).
11.2. As soon as reasonably practicable following a Service Suspension, SafeGraph will notify Publisher of the reason(s) for the Service Suspension and, where applicable, confirm the steps that Publisher is required to take before SafeGraph may elect to reinstate Publisher’s access to the Service.
11.3. SafeGraph may, but shall have no obligation to, reinstate Publisher’s access to the Service after:
11.3.1. Publisher provides written certification that the breach or grounds giving rise to the Service Suspension have been completely remedied; and
11.3.2. At its election, SafeGraph has performed tests or otherwise is able to satisfy itself that such breach or default has in fact been adequately remedied.
12. Term and Termination of the Agreement
12.1. The Agreement will commence when SafeGraph notifies Publisher in accordance with these Terms of Service that Publisher’s application has been accepted and, unless earlier terminated in accordance with clause 12.2, will continue until either party gives the other party written notice of termination at any time via email. For the avoidance of doubt, either party may terminate this Agreement with immediate effect at any time for any or no reason without liability to the other party. Notices to SafeGraph shall be sent to [email protected]. Notices to Publisher will be sent to the email address provided by Publisher in its application or as updated in accordance with this Agreement.
12.2. Either party may terminate this agreement with immediate effect if:
12.2.1. the other party becomes bankrupt, insolvent or unable to pay its debts in accordance with applicable laws; or
12.2.2. the other party is in breach of any material term of the Agreement and, in the case of a breach capable of remedy, has failed to remedy such breach within three (3) days of having been notified in writing of such breach.
12.3. Upon termination of the Agreement:
12.3.1. Publisher will immediately cease all use of the Service, remove all instances of the Service and Booking Platform Materials from all Affiliate Sites, and promptly return to SafeGraph, or at SafeGraph’s written request, destroy, any and all of its intellectual property rights, information and/or materials, or those of any Booking Platform provided hereunder, in Publisher’s possession; and
12.3.2. except where (i) the Agreement is terminated by SafeGraph under clause 12.2 (in which case Publisher forfeits all rights to receive any further payments) or (ii) the Publisher Revenue accrued (less any Chargebacks) is less than $65 (USD), SafeGraph shall pay Publisher the Publisher Revenue accrued (less any Chargebacks and pending payments from Merchants or Booking Platforms) not later than the date falling three (3) months after the effective date of termination.
13. Grant of Rights
13.1. SafeGraph grants to Publisher a non-exclusive, non-transferable, non-sublicensable, revocable, worldwide, license to use the Service during the term of the Agreement in accordance with the terms and conditions hereof.
13.2. Publisher shall not use the Service or Booking Platform Materials in any way other than as set out in the Agreement. Any attempt to interfere with the operation of the Service (or any part thereof) will constitute a breach of the Agreement.
13.3. All intellectual property rights subsisting in the Service (or any part thereof, including without limitation the SafeGraph Code and Reservation Link Platform), and in any developments, enhancements, data, information and other material relating to, arising out or derived from the Service, or any part thereof (“Derivative Works”), shall at all times be owned by and vest in SafeGraph, other than the Booking Platform Materials which shall remain at all times the intellectual property of the relevant Booking Platform. Except as expressly set forth in clause 13.1, Publisher agrees that the Agreement does not transfer or grant any right, title or interest in any other party’s intellectual property, including SafeGraph’s intellectual property rights in or to the Service, or the Derivative Works (or any part thereof) to Publisher. All intellectual property rights subsisting in the Affiliate Sites shall at all times be owned by and vest in Publisher, except to the extent necessary for SafeGraph to exercise its rights or perform its obligations hereunder including, without limitation, those set forth in Section 16.
13.4. Each party owns all data, if any, that such party collects in connection with the Service. As to SafeGraph, such data may include and is not limited to Usage Data. The foregoing shall further include any reports created, compiled, analyzed, or derived by a party with respect to such data. SafeGraph’s data collection practices are reflected in its Privacy Policy, which Publisher should periodically review for updates.
13.5. Publisher is not required to provide any feedback or suggestions to SafeGraph. To the extent Publisher does provide any such feedback or suggestions, Publisher hereby grants to SafeGraph and its affiliates a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right, and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit all such feedback and suggestions without restriction.
14. Privacy and Data Protection
14.1. Publisher acknowledges and agrees that it will not send or make available to SafeGraph any Personal Data belonging to a third party in connection with the Service. To the extent any Personal Data is collected in connection with the Service, the parties agree to SafeGraph’s Privacy Terms located here, as updated from time to time, and to maintain any such data in compliance with Applicable Laws.
14.2. Each party shall implement appropriate technical and organizational security measures to protect Personal Data collected in connection with the Service from accidental or unlawful destruction, loss, alteration, and unauthorized disclosure or access, consistent with the requirements of Applicable Data Protection Laws. Each party assumes responsibility for its collection, use, processing, and maintenance of Personal Data, if any.
15. Assignment
15.1. Publisher may not assign or otherwise transfer its rights and/or obligations under the Agreement, whether in whole or in part. SafeGraph may transfer its rights and/or obligations under the Agreement, whether in whole or in part, without Publisher’s consent.
16. Communication
16.1. Any notice under the Agreement shall be in writing and shall be made either via email or certified mail to the other party’s registered office address. Notices sent by email will be deemed effective 24 hours from the time of sending to the other party’s provided email address and notices sent by mail will be deemed effective 48 hours after posting.
16.2. Publisher agrees that SafeGraph may use Publisher’s contact details (including its email and registered address) to notify it about its account with SafeGraph, any issues relating to, and updates to, the Service, and any modifications to the Terms of Use.
16.3. SafeGraph may disclose its relationship with Publisher in its marketing material and in its operational relationship with Booking Platforms and Merchants, including using for such purposes Publisher’s name and trademarks.
17. Modifications
17.1. SafeGraph may modify all or any part of this Agreement, at any time and at its sole discretion, with immediate effective. Publisher’s continued participation in the Service following any such modification to this Agreement will constitute Publisher’s acceptance of the modification.
18. Indemnity
18.1. Publisher shall indemnify, defend and hold harmless SafeGraph against all losses, liabilities, damages and costs (including legal expenses) sustained, incurred or suffered by SafeGraph as a result of any claim, action or proceeding that: (i) the Affiliate Sites infringe the intellectual property rights of any third party; (ii) Publisher is in breach of its obligations under the Terms of Use; or (iii) any third party claims arising from Publisher’s use of the Service otherwise than in accordance with the Terms of Use.
19. Limitations on Liability
19.1. Except as expressly and specifically provided in the Agreement, all warranties, conditions, representations and other terms of any kind, whether express or implied, are, to the fullest extent permitted by law, excluded from the Agreement. In particular (but without prejudice to the generality of the foregoing), SafeGraph makes no express or implied warranties or representations with respect to the operation or availability of the Service, the participant of any Booking Platform or Merchant, or to the optimization of Commissions. SafeGraph will not be liable for the consequences of any interruptions to or errors in the Service.
19.2. SafeGraph shall not be liable for: loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; or loss of goods; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss (whether or not falling in any of the foregoing categories), costs, damages, charges or expenses.
19.3. In no event will SafeGraph’s total aggregate liability under or in connection with the Agreement, whether for breach of contract, tort (including negligence), misrepresentation or any other legal theory, shall be limited to an amount equal to SafeGraph’s share of Commissions during the twelve-month period preceding the date on which the claim arose.
19.4. Nothing in the Agreement excludes the liability of either party for any other liability which cannot be excluded under applicable law, including fraud, fraudulent misrepresentation, or death or personal injury caused by either party’s negligence.
20. Force Majeure
20.1. Neither party shall be liable to the other by reason of any event arising which is beyond the reasonable control of the affected party, including any industrial action (save in respect of affected party’s employees or suppliers, governmental regulations, fire, flood, disaster, civil riot or war).
21. Entire Agreement
21.1. The Agreement constitutes the whole agreement between the parties relating to its subject matter and supersedes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter.
22. Governing Law, Jurisdiction and Venue
22.1. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, except for its choice-of-law rules that would result in the law of another State or forum being applied. In relation to any legal action or proceedings to enforce the Agreement or arising out of or in connection with the Agreement, any such proceeding shall be brought exclusively in the state or federal courts of the State of Delaware, and each of the parties irrevocably submits to the exclusive jurisdiction of thereof.
