Sojern Terms and Conditions - February 26, 2025

Last Updated February 26, 2025

Terms and Conditions

Media Services Schedule

Guest Experience Solutions Service Schedule

Traveler Audiences To Go Service Schedule

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This Sojern Terms and Conditions (“Terms”) is made between the Sojern entity addressed in the Order Form (“Sojern”), and the contracting party identified on the Order Form (“Customer”), together referred to as the “Parties” and each individually as a “Party”. The Parties hereby agree to these Terms, including any applicable Service Schedules(s), Order Form(s), and SOW(S), each of which become binding on the Parties and are incorporated into these Terms upon execution of an Order Form (“Terms Effective Date”). Each Order Form, or SOW is governed by and incorporates the following documents collectively referred to as the “Agreement,”  that consists of:

1. Order Form, and/or Statement of Work;
2. Service Schedule(s); and
3. These Terms.

In the event of a conflict, the order of precedence is set out above in descending order of control. Where these Terms or an Order Form have been translated into a language other than English, such translation(s) shall be for informational purposes only and the English version shall control in the event of a conflict. 

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES ON AN INDIVIDUAL CLAIM BASIS ONLY AND WITHOUT A JURY TRIAL.

1. Definitions

“Ad Content” means any content which promotes Customer’s products and/or services, including, but not limited to, images, graphics, text, data, links or other digital objects or code.      

“Advertiser” means the end customer Sojern is ultimately providing its Services for. Also could be a Represented Hotel.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the Party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voted interests of the Party. Any legal entity will be considered a Party’s Affiliate as long as that interest is maintained.

“Affiliated Property” means a hotel or chain that purchases Sojern Services directly from Sojern, but has a relationship with a corporate brand as a franchisee or otherwise.

“Agency” means a media agency or management company that purchases Sojern Services for the benefit of their Represented Hotel.

“Customer Account” means a unique account for the Customer and its Users to access and use the  Sojern Services.

“Customer Ad Content” means any images, graphics, text, data, links or other digital objects or code (but not limited to) supplied by the Customer (or on their behalf) which is included in  or used to deliver any content which promotes customer’s products and/or services.      

“Customer Materials” means the materials, systems, data (including through CRM or SFTP), personnel, trademarks, and logos of Customer. This is inclusive of Customer Ad Content.

‍“Digital Asset(s)” means any website, mobile applications, software application, digital platform or tool owned, operated, licensed or managed by Customer, or another third party that is part of the Sojern Network.

“Documentation” means the current version of the readme and help files, knowledge base, and other documentation applicable to the Sojern Services and made available to Customer.   

‍“End User” means visitors or clients of Advertiser visiting or using the Digital Assets owned by the Customer or other third parties on the Sojern Network.

“Guest Experience Solutions”/“GES” means Sojern’s cloud-based application, mobile application, and platform for guest engagement and management, including customer relationship management and any corresponding support, maintenance, and professional services.

“Intellectual Property Rights” means all i) patents, patents disclosures and inventions (whether patentable or not), ii) trademarks, service marks, logos, trade or business names, domain names, together with all of the goodwill associated therewith, iii) copyrights and copyrightable works (including computer software), rights in data and databases, iv) trade secrets, know-how, and other confidential information, and v) all other  rights or forms of protection of a similar nature, however designated, whether enforceable, registered or not, in any country.

“Order Form” means the commercial agreement entered into by the Parties that sets forth the specific pricing and options for Sojern’s provision of the Service to the Customer. Capitalized terms used herein but not defined shall have the meaning set in the Order Form. The Parties may enter into multiple Order Forms, if appropriate.

“Media Services” means all advertising services provided by Sojern pursuant to these Terms, including Programmatic Services, and Social Media Advertising including Meta Services, Metasearch Services, SEM Services, and any other digital advertising services such as email marketing (each as may be applicable).

“Professional Services” means any consulting, architecture, training, configuration, or other ancillary solutions set forth in an Order Form and/or SOW.

“Represented Hotel(s)” means a hotel or chain that uses an agency or management company to procure and/or manage Sojern Services on its behalf. 

“Service Data” means the data Sojern collects using the Sojern Technology in connection with delivering the Sojern Services through: the Sojern Network, the Customer’s Digital Assets or other applicable mechanisms, and through the Sojern Platform. It could include aggregated, de-identified End User information.

“Sojern Network” means third-party websites, networks, mobile applications, devices, platforms, and channels that are not owned, operated, or controlled by Sojern, but on which Sojern has a contractual right to serve Ad Content, target users, or access data on behalf of Customer using Sojern Technology.

“Sojern Platform” means the web-based platform and any underlying technology to access certain Sojern Services.

“Sojern Policies” means, as applicable, the  Advertising Policy,  Acceptable Use Policy, and other such policies.   

“Service Schedule(s)” means the service-specific terms applicable to the relevant Sojern Service(s).

“Sojern Service(s)” means any service provided by Sojern pursuant to an Order Form/ or SOW under these Terms through Sojern Technology, Professional Services or otherwise.

“Sojern Technology” means Sojern’s proprietary, digital media, marketing, data solutions used to provide Sojern Services, including the Sojern Platform, and any scripts, tags, other software code, API, mobile application, software or integration by Sojern in to the Sojern Network as part of the Sojern Services.

“Users” means one individual natural person, whether an employee, contractor, or agent of Customer who is authorized by Customer to access and use the Customer Account, configure the Sojern Services, access reports and analytics, or manage payment. If the User is not an employee, or contractor of Customer, use of the Sojern Services will only be allowed only if the User is under confidentiality obligations with Customer at least as restrictive as those in these Terms and is accessing the Sojern Services solely to support Customer’s internal business purposes with Customer’s consent. Sojern reserves the right to verify with Customer any User’s access.

2. Usage and Access Rights

2.1 Access to the Sojern Service. Conditioned on Customer’s payment of the Fees and subject to the Agreement, Sojern will provide the Sojern Services to Customer, its Affiliates, during the Term, subject to the limitations set forth in the applicable Order Form, Service Schedule.

2.2  Customer Account. In connection with Customer’s receipt of Sojern Services, Customer will be asked to create a “Customer Account.” Depending on the information Customer makes available when using Sojern Technology, Customer can use the Customer Account to adjust budgets, billing & payment,configure, user management, and view various types of analytics, which may include visits to Customer’s designated websites, as well as Sojern-Driven Bookings (where applicable). If Customer establishes a Customer Account, Customer agrees to provide accurate and truthful information when establishing the Customer Account and to keep such information current. Customer will be responsible for all activity that occurs using the Customer Account, including any losses incurred by Sojern or any other authorized User of the Sojern Services resulting from Customer’s failure to maintain the security of its account information.

‍2.3 Use of Sojern Technology & Customer Access. To enable Sojern to provide the Sojern Services, Sojern will: i) make available the Sojern Technology to Customer, and Customer will implement and maintain the Sojern Technology on its designated Digital Assets, or ii) Customer will provide access to its Digital Assets or their Customer Materials. Customer will secure any necessary authorizations to implement, maintain and use the Sojern Technology on Customer’s designated Digital Assets. Sojern may, from time to time, provide Customer with an update to the Sojern Technology and Customer will promptly insert or implement, or instruct any authorized third party to insert or implement, such updates as instructed by Sojern. In order to provide the Sojern Services, Sojern will use, analyze, process, store and combine Service Data with other data. Sojern may use the Service Data to improve the Sojern Technology and Services, and other programs or solutions, create analytics, reports, and audiences. Customer may only use the Sojern Technology according to the limitations set forth in the Agreement.

3. Payments and Invoicing

3.1 Payment Terms. Customer will pay Sojern in accordance with the Fees as set forth in the applicable Order Form (“Fees”), and Service Schedule. Payment of the Fees will be made using the method specified by the Customer via the Customer Account. Customer is responsible for keeping all account information accurate and up to date, including, as applicable, payment card, bank account information, address, and account contact information. Fees may include any related costs, including third-party services as noted on the applicable Order Form (or through other applicable means of notice). Customer hereby represents that Sojern is permitted to charge the payment of record noted in the Customer Account for all Fees, and that Customer will be responsible for all charges incurred by Users or other payment methods used (such as bank account information) in connection with a purchase or other monetary transaction interaction with Sojern. All Fees are payable as designated in the Order Form and are non-cancelable and non-refundable except as otherwise set forth within the applicable Order Form. Sojern reserves the right to apply any payment received to any outstanding invoice, including any Fees due to older invoices.

3.2 Disputes. In the event of late payment, Sojern may without waiving or prejudicing any other rights or remedies available: i) to charge the lesser of 1.5% per month or the maximum rate permitted by applicable law, ii) suspend the applicable Sojern Service(s) immediately until the Fees are brought current, and/or, iii) where applicable, automatically accelerate all remaining total Fees under the order becoming immediately due and payable. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Sojern to collect any amount that is not paid when due, and not properly disputed.  If Customer is paying by payment card and if the payment card is declined for any installment, beginning five (5) days after the unsuccessful charge, Sojern may suspend the Sojern Services immediately until payment is brought current. If a PO number is required by the Customer in order for an invoice to be paid, then the Customer must provide such a number by emailing accounting.billing@sojern.com within three (3) days of execution of an Order Form. However, Customer’s failure to provide a PO does not relieve Customer of their obligation to pay the Fees.

‍3.3 Taxes. Customer will be responsible for all applicable taxes in connection with their Order Form or SOW, including, but not limited to, sales, use, excise, value-added, goods and services, consumption and other similar taxes or duties (“Taxes”). Should any payment for Sojern Services be subject to withholding tax by any government, Customer will reimburse Sojern for such withholding tax. If Customer is exempt from any Taxes for any reason, Sojern will exempt Customer from such Taxes on a going-forward basis once Customer delivers a duly executed and dated valid exemption certificate to Sojern and Sojern finance department has approved such exemption certificate. If for any reason a taxing jurisdiction determines that Customer is not exempt from such exempted Taxes and then assess Sojern such Taxes, Customer agrees to promptly pay Sojern for such Taxes, plus any applicable interest or penalties assessed.

4. Agency, Affiliates & Beta

4.1  Agency. If Customer is an Agency or management company signing an Agreement on behalf of a Represented Hotel who will be identified in such Agreement, Customer represents and warrants: (i) that it is authorized to sign the applicable Agreement(s) on behalf of the Represented Hotel; and (ii) Customer will assume liability for all invoices issued pursuant to the applicable Agreement(s) in the event that the Represented Hotel does not timely pay such invoices; iii) it agrees on behalf of the Represented Hotel to these Terms; iv) that all acts performed by Agency on behalf of its Represented Hotels in connection with the use of the Sojern Services shall be in strict compliance with these Terms. If the Agency has not bound a Represented Hotel to these Terms, the Agency will remain liable for performing any of the Represented Hotel’s obligations. Agency shall notify Sojern without undue delay should the relationship between the Agency and Represented Hotel terminate in a manner that impacts the Agreement.

4.2 Affiliated Property. If Customer is a corporate hotel brand and wants to access its Affiliated Property’s Customer Account with Sojern, Customer represents and warrants it has all appropriate consent and permission to access that Customer Account through its relationship with the Affiliated Property and will remain wholly liable to Sojern for any damages as a result of that access. Customer as a brand may allow the Affiliated Property to adopt these Terms for the Sojern Services.

4.3 Affiliates. An Affiliate of a Customer may use the Sojern Services under these Terms. However, Customer will remain responsible for the acts and omissions of their Affiliates in connection with each Affiliate’s use of the Sojern Services during their orders, including, without limitation, breach of the terms of the Agreement applicable to such Affiliate, even if such Control is no longer maintained. Any claim from any Affiliate that uses the Sojern Services under these Terms shall only be brought against Sojern by the Customer (who is the parent entity). Notwithstanding the foregoing, Sojern may refuse to provide the Sojern Services to any Affiliate that fails to pass, in Sojern’s reasonable business judgment, a background check or financial history audit. 

‍4.4 Beta Products. Sojern may offer the right to use certain experimental features or products from time to time (“Beta Products”). All Beta Products are provided on an “as is” and “as available” basis, without any representations, warranties, covenants or obligations of any kind, and may be terminated by Sojern at any time. Any use of Beta Products by Customer is solely at the Customer’s own risk.

5. Intellectual Property and Privacy 

5.1 Intellectual Property. Sojern is the sole owner or authorized licensee of all Intellectual Property Rights in and to the Sojern Technology, the Sojern Services, and Sojern-Created Content as well as any changes, derivatives, corrections, developments, enhancements, updates and other modifications, improvements by Sojern through Customer’s use of the Sojern Technology or Sojern Services. Subject to the Agreement and during the Term only, Sojern hereby grants Customer, a non-exclusive, non-transferable, and non-sub licensable license to access, use the Sojern Services and Sojern Created Content for its business purposes only.

5.2 Restrictions. Customer shall not or permit any third party to, i) alter, modify, or create any derivative works of the Sojern Services or Technology, the underlying source code, or the Documentation in any way, including without limitation customization, translation or localization; ii) rent, lease, license, sublicense, encumber, sell, offer for sale, or otherwise transfer rights to the Sojern Services, Technology or Documentation, including for timesharing or as a service bureau; iii) port, reverse compile, reverse assemble, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Sojern Services, Technology or Documentation; (iv) copy, distribute, link, frame, mirror or otherwise make available any portion of the Sojern Services, Technology to any third party other than a third-party contractor who may only use the to support the Customer’s internal purposes; (v) remove or alter any logos, trademarks, links, copyright or other notices, legends or markings from the Sojern Services or Documentation; (vi) attempt to bypass or tamper with the security, operation, use limits, or access control technology of the Sojern Services; (vii) attempt to access the accounts or data of any other customer; (viii) use the Sojern Services for benchmarking purposes or otherwise to analyze its workings and features for competitive purposes or in a manner that imposes unusual demands on the Sojern Services outside of normal functions and operations; (ix) use, or allow the use of, the Sojern Services by anyone located in, under the control of, or a national or resident of a U.S. embargoed country or territory or by a prohibited end user under export control laws; (x) use the Sojern Services in a manner that interferes with the use or enjoyment of it by others, including using the Sojern Services to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or circumventing or disclosing the user authentication or security of the Sojern Services or any host, network, or account related thereto; or (xi) use the Sojern Services or Documentation in a way that:  1. violates applicable law or infringes upon the rights of a third party, including those pertaining to contract, intellectual property, privacy, or publicity;  2. or that violates Sojern Policies, which is incorporated herein and found here; 3. or that effects or facilitates the storage or transmission of libelous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene. Notwithstanding any other provision of this Agreement, in the event of Customer’s breach of any restrictions in this Section 5, Sojern shall have the right upon notice to immediately suspend the Sojern Services until such breach is corrected.

5.3 Customer Intellectual Property. Customer is the sole owner of its own Intellectual Property Rights. 

As applicable, Customer hereby grants Sojern a worldwide, non-exclusive, royalty-free, fully paid up, transferable license, with a right to sublicense, to use, reproduce, distribute copies of, modify, publicly perform and publicly display and otherwise exploit Customer  Ad Content, and if applicable, any other Customer Materials provided to Sojern: (i) as necessary to provide the Sojern Services; (ii) to serve the Customer Ad Content on Sojern Networks; (iii) create custom audiences; and (iv) in order to create advertisements, and emails for Customer and Customer’s business, to be served on Sojern Networks or through email marketing campaigns (“Sojern-Created Content”). Customer agrees that Sojern may use the  Customer Ad Content and Customer’s name, trademarks, and/or logos: (i) on Sojern’s website; (ii) in communications about its business partners, including, without limitation, webinars, pitch decks, communications with the press without prior consent.

5.4 Other than as expressly provided for in these Terms, neither Party will acquire any right, title, possession, control or interest in any Intellectual Property Rights belonging to the other Party or the other Party’s licensors.      

5.5 Privacy. If the Parties process personal data in the context of the Sojern Services, they agree to comply with their respective obligations under applicable privacy and data protection laws, regulations, and industry self-regulatory principles. Customer will provide notice to, and obtain any required consents from, its End Users and other applicable individuals regarding its collection, use, storage, or disclosure of personal data, including Sojern’s collection, use, storage, or disclosure of personal data when such data is collected directly from Customer’s Digital Assets. Personal data shall be treated in accordance with the Sojern Privacy Policy, available at https://www.sojern.com/privacy/privacy-policy, and Sojern shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of personal data. To the extent applicable under relevant privacy laws, these Terms incorporates by reference the Sojern Data Processing Addendum (“Sojern DPA”), available at https://www.sojern.com/partner-dpa/na-en, and Customer is a data controller and Sojern is a data processor with respect to personal data. If, as applicable under relevant privacy laws, Sojern cannot operate as a “processor” or “service provider”, it shall act as a “business,” “controller,” or equivalent term.

6. Third-Party Designated Websites/Services

Customer may authorize (and these Terms may serve as the authorization) Sojern or a third party to insert or implement the Sojern Technology on third-party designated website(s), booking engines, software, platform or procure third-party services on behalf of Customer. Sojern will not have any liability of any nature whatsoever which arises as a result of compliance with Customer’s authorization. Sojern makes no representations as to the suitability, functionality, or legality of any third-party websites, booking engines, or services that Customer has authorized for implementation of Sojern Technology. Customer’s correspondence or business dealings with a third party, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between Customer and such third party. There are no third-party beneficiaries to these Terms. In the event that Customer chooses to integrate or interoperate third-party services with the Sojern Services in a manner that requires exchange or access customer data with such third-party services or third-party services provider, Customer grants Sojern: (a) the permission to allow the third-party services and third-party services provider to access customer data and information about Customer’s usage of the third-party services  as appropriate and necessary to enable the interoperation of that third-party services with the Sojern Services, and will be fully responsible for all fees associated with such access; (b) acknowledge that any exchange of data between Customer and any third-party services is solely between Customer and the third-party services provider and is subject to the third-party services provider’s terms and conditions governing the use and provision of such third-party services; and (c) agree that Sojern is not responsible for any disclosure, modification or deletion of customer data resulting.

7.  Warranties & Disclaimers 

7.1 Customer. Customer 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), and (b) the Customer Ad Content and any other content provided by Customer to Sojern: (i) 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 (ii) complies with Sojern’s Advertising Guidelines. 

7.2 Sojern. Sojern represents and warrants that 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.

7.3 Sojern Professional Services. Sojern warrants that the Professional Services will be performed in a competent and workmanlike manner in accordance with accepted industry practices and the terms and conditions herein. However, if Customer does not provide Sojern with timely access to Customer Materials, then Sojern’s performance will be excused until access is provided. Customer’s exclusive remedy for breach of this warranty is to notify Sojern in writing within thirty (30) days of the non-conforming Professional Services. Upon receipt of such notice, at Sojern’s option, Sojern will either use commercially reasonable efforts to re-perform the Professional Services in conformance with these warranty requirements or will terminate the affected Professional Services and will refund Customer the prorated amount of Fees for the unperformed and non-conforming Professional Services. This Section sets forth Customer’s exclusive rights and remedies and Sojern’s sole liability in connection with the performance of Professional Services.

‍7.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THE AGREEMENT: A) NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW OR STATUTORY, AS TO ANY MATTER WHATSOEVER; AND B) EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. In addition, there is no guarantee that Sojern Services will lead to any clicks, leads or actual acquisitions.

8. Confidentiality 

8.1 Definition of Confidential Information. Each Party agrees that all business, technical and financial information that is designated as “Confidential” or “Proprietary,” or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under an Agreement are the confidential property of the Disclosing Party and its licensors (“Confidential Information”). The Receiving Party shall not be obligated under this Section 8 with respect to information that: (i) is or has become readily publicly available through no fault of the Receiving Party or its employees or agents; (ii) is received from a third party lawfully in possession of such information and the Receiving Party has no knowledge of any disclosure restrictions on such third party to disclose such information; (iii) is disclosed to a third party by the Disclosing Party without restriction on disclosure; (iv) was rightfully in the possession of the Receiving Party without restriction prior to its disclosure by the other Party; or (v) was independently developed by employees or consultants of the Receiving Party without reliance on such Confidential Information. 

8.2 Protection of Confidential Information. Except as expressly allowed herein, the Receiving Party will not use or disclose (except in connection with the performance of such Party’s obligations under this Agreement) any Confidential Information of the Disclosing Party.  Receiving Party shall use the same degree of care to protect the confidentiality of the Confidential Information that it uses to protect its own confidential and proprietary information (but in no event less than reasonable care). Receiving Party may disclose Confidential Information to its employees, consultants and agents who reasonably need to know such Confidential Information for purposes of this Agreement, provided that Receiving Party shall ensure that such employees, consultants and agents are bound by obligations of confidentiality substantially the same as the obligations in this Section. Receiving Party shall be liable for any disclosures of Confidential Information by its employees, consultants and agents in violation of this Section.

8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or governmental authority to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party shall limit any disclosure of Confidential Information pursuant to this Section to the extent strictly necessary to comply with the applicable request by such governmental entity. Any disclosure of Confidential Information pursuant to this Section shall not affect the confidential treatment of such disclosed Confidential Information.

8.4 Remedies. Receiving Party agrees that a breach of this Section may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.

9. Indemnification

9.1 Customer. Customer will defend, indemnify and hold Sojern, and its officers, directors and employees, harmless from and against any and all third-party claims, charges, complaints, proceedings, damages (direct or indirect), losses, liabilities, costs and expenses (including court costs and reasonable attorney’s fees) (“Claims”) due to, arising out of, or relating in any way to: (i) a breach by Customer of an Agreement (including these Terms); (ii) the Customer Ad Content or Customer Materials provided by Customer to Sojern; or (iii) instructions by Customer to Sojern or a third party for the implementation of Sojern Technology on designated website(s), booking engines, or services.

9.2 Sojern. Sojern will defend, indemnify and hold Customer, and its officers, directors and employees, harmless from and against any and all Claims due to, arising out of, or relating in any way to a third-party claim that i) the Sojern Technology infringes, violates or misappropriates any third-party rights, including any patent, trademark, trade secret, copyright, right of publicity, or any other intellectual property or proprietary right; or ii) Sojern’s gross negligence or willful misconduct under an Agreement. Notwithstanding the foregoing, Sojern will not be responsible for any Claims due to Customer’s or it’s User’s combination of Sojern Technology with goods and services provided by third-parties, adherence to specification, designs or instructions furnished by Customer’ or Customer’s modification of the Sojern Technology not described in the Documentation or otherwise authorized by Sojern. If any portion of the Sojern Technology may be subject to a Claim, then Sojern will have the option at its expense to: i) to modify such Technology to make it non-infringing, or ii) procure the right to continue using the technology. If these options are not possible, Sojern will provide a prorated refund to Customer to any prepaid fees for the infringing Sojern Technology received by Sojern under the Agreement that correspond to the unused portion of the Term (order). The remedies set out in this Section 9 are Customer’s sole and exclusive remedies for any actual or alleged infringement by Sojern of any third-party intellectual property right under these Terms.

9.3 Procedures. The Parties’ respective obligations in this Section requires: a) that Indemnified Party provides prompt written notice of the claim, and reasonable cooperation, information, in connection therewith, and b) the Indemnifying Party shall have sole control and authority to defend, settle, or compromise such claim, but shall not make any settlement without the Indemnified Party’s written consent (not to be unreasonably delayed). The Indemnifying Party will indemnify the Indemnified Parties against: i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any Claim; ii) all out-of-pocket costs (including reasonable attorneys’ fees); iii) and all amounts the Indemnifying Party agreed to pay to any third party in settlement of any Claims under this Section.

10. Limitation of Liability

Except where prohibited by law, in no event will Sojern or any of its Affiliated entities be liable to Customer or any third party for any special, indirect, incidental, punitive, exemplary or consequential damages of any kind arising out of or in connection with: (i) the use of, or inability to use, the Sojern Services; (i) any content made available through the Sojern Services; or (iii) in connection with any agreement that incorporates these Terms, regardless of the form of action, whether in contract, tort, strict liability or otherwise, even if Sojern has been advised, or is aware, of the possibility of such damages. If Sojern is found liable for any damage or loss which arises out of or is in any way connected with an Agreement, then Sojern’s liability for any damage or loss which arises out of or is in any way connected with an Agreement will in no event exceed the amount paid by Customer for the provision of the Sojern Services during the six (6) months immediately preceding the date of the claim or one thousand (1,000) U.S. dollars, whichever is greater. In jurisdictions that do not allow for the limitation of liability set forth in these Terms, Sojern’s liability will be limited to the fullest extent allowed by applicable law.

11. Modification of Terms and Order Form

11.1 Sojern reserves the right to modify these Terms at any time at its sole discretion and without prior notice, by making the amended terms available on the Sojern website, with the date of revision stated in the title. Notwithstanding the foregoing, Sojern will use commercially reasonable efforts to provide notice of material changes to these Terms when such changes are enacted by posting notice within the updated Terms or within the Customer Account (as decided by Sojern in its sole discretion). Customer’s continued use of the Sojern Services will indicate acceptance of such modified terms. If any modification is unacceptable to Customer, Customer’s sole and exclusive remedy is to terminate all Agreements incorporating these Terms. Any negotiated changes to these Terms must be reflected in a countersigned writing. 

11.2 Order Form. Except as otherwise specified herein, Order Forms may only be modified: (i) via Customer-initiated changes in the Customer Account (where applicable); or (ii) via countersigned amendment or new Order Form, (iii) or documentation confirming consent of new terms between the Parties. 

12. Term and Termination; Effect of Termination 

These Terms commence when Customer accepts or signs the Terms, and  shall remain in effect for the duration of all Order Forms and/or SOW’S into which they are incorporated (“Term”). Unless otherwise specified in the Agreement, either Party may terminate such Agreement(s): (i) without cause upon seven (7) days’ prior written notice, which notice may be given by electronic mail; 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 of such material breach. The Parties agree that the sections discussing payment obligations, privacy, Confidential Information, representations and warranties, indemnification, disclaimers, limitations of liability and the general terms will survive expiration or termination.  Immediately upon termination for any reason, i) Customer’s access to the Sojern Service will be terminated and Customer will promptly cease all use of Sojern’s Confidential Information, ii) Customer will promptly, but in no event later than 15 days after termination, pay in full all Fees due prior to termination.

13. Assignment

In the event that Customer is party to a sale, merger, transfer, or consolidation of its assets (collectively, a “Change of Control”), all Agreement(s) (including these Terms and all payment obligations) will be binding upon the applicable purchaser, successor, transferee or assignee of Customer (the “New Owner”) upon completion of such transaction. Sojern may freely assign the Agreements. Customer shall use best efforts to notify Sojern not less than fifteen (15) days prior to the completion of a Change of Control, which written notice shall include contact information for the New Owner. If Customer fails to notify Sojern of the Change of Control, Sojern reserves the right to invoice Customer for the Fees derived prior to the Change of Control. 

14. Relationship Between the Parties 

Sojern and Customer 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. 

15. Arbitration 

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH A PARTY CAN SEEK RELIEF FROM THE OTHER PARTY. For any dispute with Sojern, Customer agrees to first contact legal@sojernlegal.com and attempt to resolve the dispute with Sojern. In the unlikely event that the Parties have not been able to resolve a dispute after thirty (30) days, any controversy or claim related to this Agreement, or breach hereof, shall be settled by arbitration in the city of San Francisco, California by binding arbitration by JAMS, Inc. (“JAMS”) under the Optional Expedited Arbitration Procedures then in effect for JAMS. JAMS may be contacted at www.jamsadr.com. Any award with respect to any Agreement signed by Sojern, Inc., will be construed in accordance with the laws of the State of California, without regard to any conflict of law provision. Any award rendered shall be final, binding, and conclusive. A judgment upon the award rendered may be entered in any court having jurisdiction thereof. It is agreed that the  unsuccessful Party to such an action shall pay the prevailing Party therein all costs related to the action, reasonable attorney’s fees and expenses incurred by the prevailing Party. With respect to any Agreements signed by Sojern Limited, such Agreements will be construed in accordance with the laws of England and Wales, without regard to any conflict of law provisions. With respect to any Agreements signed by Sojern Intl Limited, such Agreements will be construed in accordance with the laws of the Republic of Ireland, without regard to any conflict of law provisions. Notwithstanding, either Party may apply for injunctive or other equitable relief to protect or enforce that Party’s intellectual property rights in any court of competent jurisdiction where the other Party resides or has its principal place of business. 

16. General Provisions 

The Agreement(s) executed between Sojern and Customer constitute(s) the complete and exclusive agreement(s) between Sojern and Customer 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. If any provision of an Agreement (including these 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 these Terms), this will not be construed as a waiver of such right or provision. The Parties acknowledge and agree that notices in electronic format (e.g. e-mail or PDF) are an acceptable means of notice under these Terms.

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MEDIA SERVICES SERVICE SCHEDULE

Unless otherwise defined in this Service Schedule for the Media Services, capitalized terms will have the meaning given to them in the Agreement. Specific terms described below will only be applicable if Media Services are purchased.

1. Definitions

“Commission Campaigns” means the campaigns utilizing the Sojern Service that allows properties to pay a percentage of the booking value for Sojern-Driven Bookings, under a reconcilable booking model  and/or gross booking model as applicable.

“Email Services” means Sojern managing Customer’s email marketing campaigns to drive Sojern-Driven Bookings.

“Metasearch Services” means metasearch marketing services provided by Sojern.       

“Programmatic Services” means Sojern’s suite of programmatic display advertising services, which may include, without limitation, display, video and native advertising across multiple platforms.

“SEM Services” means search engine marketing services provided by Sojern. 

“Social Media Services” means Sojern managing Customer’s Meta advertising (or other applicable social channels) campaigns through Sojern’s Meta Business Manager Account, with Customer allowing Sojern to purchase media and ad inventory on its behalf, and Sojern paying media costs associated with use of the Meta Services.

“Sojern-Driven Bookings” means bookings initiated by Customer customers via Customer’s designated website(s) or booking engines which can be attributed to the Sojern Services. 

2. Customer Ad Content 

2.1 Customer will provide Sojern with the Customer Ad Content or access to Customer Ad Content, and if applicable, other Customer Materials reasonably requested by Sojern, in order to enable Sojern to perform its duties under applicable Agreement(s). All Customer Ad Content provided by Customer shall adhere to Sojern’s Policies. Sojern reserves the right, in its sole discretion, to reject or remove any Customer Ad Content from the Sojern Network at any time. Sojern will use commercially reasonable efforts to obtain Customer’s approval of Sojern-Created Content prior to distribution on the Sojern Network; provided, however, failure by Customer to expressly reject Sojern-Created Content (and non-material variations thereof), will constitute approval by Customer. Customer agrees that Sojern may, in its sole discretion: (i) edit Customer Ad Content provided by Customer with respect to Customer Ad Content size and format; and (ii) test performance of variations of Customer Ad Content (e.g. exterior images vs. room images) to optimize performance of the Media Services.

3. Delivery of Media Services 

3.1 Sojern reserves the right to limit, in its sole discretion, the provision and quantity of any feature or part of the Media Services to any person, entity or geographic area. Sojern also reserves the right to modify, amend, suspend, interrupt or terminate the Sojern Technology or the Sojern Network or any part thereof, at any time and for any reason, with or without notice to Customer and without liability to Customer or any third party. 

3.2 Sojern will use commercially reasonable efforts to ensure that: (i) the Sojern Network does not include websites that are of a pornographic, defamatory, obscene or illegal nature, and (ii) where requested by Customer, the Sojern Created Content does not appear adjacent to Customer competitors, but because Sojern does not own or operate the sites within the Sojern Network, Sojern gives no guarantee or warranty of any kind that the Sojern Created Content will not be displayed in such contexts. Sojern expressly disclaims any and all liability in connection therewith and Customer hereby waives any legal or equitable rights or remedies Customer may have against Sojern with respect thereto. Customer’s sole and exclusive remedy with regards to i) only is as follows: 

1. With respect to Commission Campaigns, Sojern will promptly remove the violating Ad and the Sojern Created Content; and
2.  With respect to all other Media Services campaigns, Sojern will promptly remove the violating Sojern Created Content and offer Customer makegood impressions in an amount equal to the number of errant impressions. 

‍3.3 Solely with respect to Commission Campaigns, Sojern will use best efforts to serve the Sojern Created Content on the Sojern Network; provided, however, that there is no guarantee that Sojern Created Content will be delivered. The placement of Sojern Created Content throughout the Sojern Network and priority and frequency with which the Sojern Created Content is served for Commission Campaigns will be at Sojern’s sole discretion.

4. SEM Services 

4.1 SEM Services may be made available to Customer, at Customer’s express election (which, with respect to Commission Campaigns only, may be provided via e-mail or other method of consent). If Customer engages Sojern to provide SEM Services (where available), the following additional terms shall apply: 

1. Customer agrees to permit Sojern to set up and manage search engine marketing accounts for Customer using products including, without limitation, Google Ads and Microsoft Bing Ads, which products will be selected by Sojern in its sole discretion. 
2. As part of the SEM Services, Customer agrees that Sojern may (among other actions), create ad groups and copy, create and update keyword lists, and perform keyword targeting on Customer’s behalf. Customer further agrees to: (i) provide Sojern with all necessary information and materials to perform the SEM Services; and (ii) be responsible for ensuring that all of such information and materials are accurate and complete. 
3. Customer represents that it is not running, and for the duration of the provision of SEM Services, it will not run or allow another third party to run Google Ads or Microsoft Bing campaigns for Customer’s properties for which Sojern is providing SEM Services without providing advance written notice to Sojern. Customer acknowledges that failing to abide by the aforementioned restriction may result in suspension of Customer’s Google Ads or Microsoft Bing accounts by the applicable provider. If Customer wishes to contact Google directly regarding any questions or concerns about the SEM Services provided on Google Ads, Sojern will, upon written request, provide Customer with its Customer ID for their Google Ads account(s). 
4. Sojern represents and warrants that: (i) in performing SEM Services with partners such as Google Ads, Sojern complies with their policies, other applicable third party policies; (ii) Sojern will pay for all media fees associated with SEM Services, and, where applicable, will disclose if it is charging management fee in connection with the SEM Services; and (iii) the SEM Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any SEM Services. As Customer’s sole and exclusive remedy (and Sojern’s entire liability) for any breach of the foregoing warranty, Sojern will, at its sole option and expense, promptly re-perform any SEM Services that fail to meet this limited warranty. 

5. Social Media Services 

5.1 Meta Services may be made available to Customer, at Customer’s express election (which, with respect to Commission Campaigns only, may be provided via e-mail or other method of consent). If Customer engages Sojern to provide Meta Services (where available), the following additional terms shall apply:

1. Customer agrees to provide Sojern with all necessary information and materials to perform the Meta Services, including, without limitation, rights and permissions related to the Customer’s Meta Ad Account(s), Meta page(s), Meta catalog(s), Meta pixel(s); Customer’s product feeds (data file containing property/product information (non-user data)); and Customer’s creative data (image, video, HTML files).
2. Customer will be responsible for ensuring that all of such information and materials are accurate and complete and will continue to exclusively own all rights in such information and materials. Customer will be responsible for all activity conducted by any employee/affiliate of Customer who is given access by Sojern to the Meta Ad Account.

6. Metasearch Services      

6.1 Metasearch Services may be made available to Customer, at Customer’s express election (which, with respect to Commission Campaigns only, may be provided via e-mail or other method of consent). If Customer engages Sojern to provide Metasearch Services (where available), the following additional terms shall apply: 

1. Customer agrees to permit Sojern to set up and manage search engine marketing accounts for Customer and its properties using products including, without limitation, Google Hotel Ads, Microsoft Hotel Ads, and TripAdvisor, which products will be selected by Sojern in its sole discretion. Customer agrees to pay any applicable Metasearch Services Fees as provided by Sojern. 
2. As part of the Metasearch Services, Customer agrees that Sojern may (among other actions), create campaigns, ad groups and hotel groups to bid on pricing information placement based on a user's itinerary and hotel attributes. Customer further agrees to provide Sojern with all necessary ARI feed(s) and tracking to perform the Metasearch Services. 
3. Customer represents and warrants that it will use best efforts to: (i) provide and maintain accurate pricing information at all times while Sojern is providing Metasearch Services; and (ii) ensure tracking is set up and maintained in order to accurately track conversions. 
4. Sojern represents and warrants that: (i) in performing the Metasearch Services via Google Ads, Sojern partners with Google and complies with the Google Third-Party Policy and other applicable third party policies; (ii) Sojern will pay for all media fees associated with Metasearch Services, and, where applicable, will disclose if it is charging management fee or other third party fees in connection with the Metasearch Services; and (iii) the Metasearch Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Metasearch Services. As Customer’s sole and exclusive remedy (and Sojern’s entire liability) for any breach of the foregoing warranty, Sojern will, at its sole option and expense, promptly re-perform any Metasearch Services that fail to meet this limited warranty. If Customer wishes to contact Google directly regarding any questions or concerns about the Metasearch Services provided on Google Hotel Ads, Sojern will, upon written request, provide Customer with its Customer ID for their Google Ads account(s).

7. Email Services

7.1 Email Services may be made available to Customer as a channel within Commission Campaigns, at Customer’s express election (which may be provided via e-mail or other method of consent).  If Customer engages Sojern to provide Email Services (where available), the following additional terms shall apply:

1. Customer agrees that Sojern will track Sojern-Driven Bookings attributed to the Email Services for the then-current month via the Customer Account Bookings Report. Customer acknowledges: i) that email-driven bookings may have different attribution methods or windows, which will be specified in the applicable Order Form or other applicable method of notice, and ii) that the Sojern-Driven Bookings will be auto-reconciled using Property Management System (PMS) data.
2. Customer agrees to permit Sojern to manage email marketing campaigns on its behalf in order to drive direct bookings in accordance to the process set forth by Sojern
3. Customer agrees that Sojern may access its Digital Assets and/or Customer Materials and retrieve their customer contact information in order to provide its Email Services. Customer represents and warrants it has the appropriate consent and permission in order to provide such customer information and it is the owner of such data.
4. Customer agrees that it will provide Sojern all necessary information and materials needed in order for  Sojern to provide its Email Services. Any limitations on the Email Services will be noted in the applicable order form (or through other method of notice).

8. Commission Campaigns Invoicing

8.1 With respect to Commission Campaigns, Customer will be responsible for paying Sojern for Sojern-Driven Bookings in accordance with the payment terms of the applicable Agreement(s) (the “Commission”). The applicable models of invoicing for Commission are as follows:

1. Reconcilable Bookings
   
   Customer will be responsible for paying Sojern Commission for Sojern-Driven Bookings, based on guest stays, with the ability to reconcile bookings. Unless otherwise agreed by the Parties, refundable cancellations and “no shows” (“Qualifying Exclusions”) will not be subject to Commission. Sojern will track and report Sojern-Driven Bookings for the then-current month via the  Customer Account (the “Bookings Report”). Customer is responsible for using the Customer Account to reconcile the Bookings Report(s) with the Customer’s records of Qualifying Exclusions to determine the final monthly Commission. Bookings Reports will be available and updated daily during each month in the Customer Account. Customer will be able to reconcile Qualifying Exclusions in the Customer Account from the first day of each month until the eighth (8th) day of the following calendar month. Commission calculations for each month will be considered final and undisputed as of the ninth (9th) day of the subsequent calendar month, and no further reconciliations or adjustments to the Commission shall be permitted after such time. Following the calculation of the final Commission for each month,
    
2. Non-Reconcilable Gross Bookings
   
   Sojern will track and report Sojern-Driven Bookings for the then-current month based on the gross booking amount for reservations on Customer’s website through the Bookings Report. Commissions for bookings will be calculated without reconciliation. For the avoidance of doubt, cancels and no-shows will not be excluded. Customers may be invoiced on a combination of Reconcilable Stays and Non-reconcilable Gross Bookings, as specified in the Order Form (or other applicable notice).

‍8.2 Invoicing for Commissions Campaigns. Sojern will invoice Customer for the final Commission. All invoices will be in the currency specified in the Order Form and, unless otherwise specified in an Order Form, exclusive of any sales, value added or similar tax, which will be payable by Customer at the time and in the manner required by law. Invoices will be sent to the contact address provided by Customer in the Customer Account on or about the tenth (10th) day of each calendar month. Any disputes regarding the accuracy of the invoice must be submitted to Sojern in writing within ninety (90) days of receipt of such invoice.

8.3 Effect of Termination for Reconcilable Bookings. Upon termination of a Commission Campaign, Sojern will deliver an invoice to Customer reflecting the final Commission and any third party fees owed. The final Commission will include: any remaining Sojern-Driven Bookings that have not been invoiced, discounted by the cancellation rate for Customer properties under the Agreement for the prior three (3) months (thereby calculating the final Commission and with no reconciliation being performed on the final invoice). In the event that Customer has no record of Sojern-Driven Bookings or cancellations prior to termination, the invoice for the final Commission will reflect the application of the standard cancellation rate for Customer’s geographical region as determined by Sojern analytics.

8.4 Effect of Termination for NonReconcilable Gross Bookings. Upon termination of a Commission Campaign, Sojern will deliver an invoice to Customer reflecting the final Commission and any third party fees owed. The final Commission will include: the total gross booking amount for all Sojern-Driven Bookings made prior to termination.

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GUEST EXPERIENCE SOLUTIONS SERVICE SCHEDULE

Unless otherwise defined in this Service Schedule for the Guest Experience Solutions, capitalized terms will have the meaning given to them in the Agreement. Specific terms described below will only be applicable if Guest Experience Solutions are purchased.

1. Definitions

“End User Information” means the names, email addresses, telephone numbers, and other required personal data of Customers or their end clients and visitors (collectively “End Users”) who have consented to provide such information and receive such messages from the Guest Experience Solutions.

2. Additional Usage Terms & Customer Responsibilities. The Guest Experience Solutions must be configured in accordance with the Documentation in order for the Services to function properly. Customer agrees that Sojern will provide messaging, customer relationship management, and other functionality to End User who have consented to Customer to receive such messages and provide their End User Information.  Customer will need to designate Users authorized to maintain the Sojern Platform, configure, access reports, insights from the Guest Experience Solutions, subject to usage limits and restrictions herein and as specified in the Order Form or Sojern’s website, such as limits on the number of messages, rooms, or properties (“Usage Limits''). Customer will be charged the applicable Fees for any use in excess of the Usage Limits, and may add additional licenses throughout the Term as needed through an amendment, subject to paying applicable additional Fees. Access to Guest Experience Solutions cannot be shared by Users, (but may be reassigned to a new User replacing a person who no longer requires access to GES) and are licensed based on a per room or property model. Customer’s use of the Guest Experience Solutions may be suspended at any time if Customer breaches any terms of the Agreement, including without limitation failing to timely pay Fees due. The Guest Experience Solutions may be subject to other limitations as set forth in the Documentation, including, but not limited to, limits on disk storage space, the rate of incoming email requests, the number of inbound calls permitted to the API within a specified period of time, the number of outbound calls made to a Customer’s API within a specified period of time, the number of messages the GES will send to the End User within a specified period of time. Customer acknowledges that exceeding these other limitations may cause GES to malfunction, may accrue additional Fees, or may result in suspension of the Guest Experience Solutions until compliance has occurred.‍

3. GES Orders and Payment. Except as set forth in the applicable Order Form, Customer will pay all Fees associated with an Order Form in accordance with the following: (a) Fees are invoiced in advance for annual, pre-paid plans; (b) the first invoice will coincide with the Subscription Start Date (as defined in the Order Form); (c) payment will be due within fifteen (15) days from the date of the invoice. A fully executed  order is non-cancellable and nonrefundable except as provided in this Agreement, and the  Term as set forth in the Order Form is a continuous and non-divisible commitment for the entire duration of the  Term. ‍

4. Usage of End User Information. Customer will retain all right, title and interest in End User Information and all Intellectual Property Rights therein.  Nothing in this Agreement will confer to Sojern any right of ownership or interest in the End User Information, other than the limited license set forth herein. Sojern may collect, store, and use the End User Information in an aggregated, de-identified manner as provided for under Section 2.3 of the Terms, and in accordance with the GES Privacy Policy found at https://www.sojern.com/privacy/ges-privacy-policy. Customer and Sojern agree that the processing of any personal data under the Guest Experience Solutions shall be carried out in accordance with the provisions of the DPA, set forth here as Exhibit B.

5. Warranty Related to Messaging Use. The Guest Services Solutions allows Customers the ability to send and receive SMS, e-mails, WhatsApp and other types of messages (“Messaging”). Customer represents and warrant that they will (i) receive and will maintain consents from each End User who will receive messages, (ii) maintain procedures for each End User to opt out of participating in Messaging, and once opted-out, Customer will not re-enroll any End User to Messaging until new renewed consent has been received, and (iii) comply with all applicable law relating to Messaging in Customer’s use of the Services, including without limitation, the Telephone Consumer Protection Act and CAN-SPAM. Customer shall be responsible for compliance with Messaging and related data privacy laws.‍

6. Support, & Service Warranty

6.1 Sojern shall provide support for the Guest Experience Solutions in accordance with the applicable plan selected by Customer under the Order Form.

6.2 Sojern warrants that the Guest Experience Solutions will perform in accordance with the Service Level Agreement (SLA) set forth here as Exhibit A, however, that the sole remedy for breach of this warranty or failure of the Services to perform shall be set forth in the SLA.

‍7. Term, Renewal & Termination for GES. The Order Form will state the Term for the Guest Experience Solutions ordered. If none is stated, the  Term is one (1) year from the effective date of the Order. At the end of each  Term, the associated order shall automatically renew for an additional annual term at the prices communicated to the Customer at least sixty (60) days prior to the end of that Term (or the same prices as the prior Term if no new prices are provided), unless Customer provides a notice of non-renewal by sending an email to the customer GES representative  at least thirty days (30) before the renewal date. Sojern will send the renewal notice to the contact email listed on the Customer Account unless Sojern is notified of another. Customer’s payment card number on file will be charged for the GES renewal term in accordance with the terms set forth in the Agreement.

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Exhibit "A"
Service Level Agreement

This GES Level Agreement (“SLA”) applies to your use of the Guest Experience Solutions and is governed by the Guest Experience Solutions Terms of Service (the “Agreement”).

Except where we specifically state something different in this SLA, this SLA is subject to the terms of the Agreement, and you can look to the Agreement to define capitalized terms. Sojern, Inc.reserves the right to change the terms of this SLA in accordance with the Agreement.

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Exhibit "B"
Guest Experience Solutions Data Processing Addendum

THIS DATA PROCESSING ADDENDUM (“DPA”) is entered into as of the Addendum Effective Date by and between: (1) Sojern, Inc. (“Sojern”); and (2) the entity or other person who is a counterparty to the Agreement (as defined below) into which this DPA is incorporated and forms a part (“Customer”), together the “Parties” and each a “Party”.

1.2 Unless otherwise defined in this DPA, all capitalised terms in this DPA shall have the meaning given to them in the Agreement.

2. SCOPE OF THIS DATA PROCESSING ADDENDUM

2.1 This DPA applies to Sojern’s Processing of Customer Personal Data under the Agreement.

2.2 Annex 2 (European Annex) to this DPA applies only if and to the extent Sojern’s Processing of Customer Personal Data under the Agreement is subject to the GDPR.

2.3 Annex 3 (California Annex) to this DPA applies only if and to the extent Sojern’s Processing of Customer Personal Data under the Agreement is subject to the CCPA with respect to which Customer is a “business” (as defined in the CCPA).

3. PROCESSING OF CUSTOMER PERSONAL DATA

3.1 Sojern shall not Process Customer Personal Data other than on Customer’s instructions or as required by applicable laws.

3.2 Customer instructs Sojern to Process Customer Personal Data as necessary to provide the Services to Customer under and in accordance with the Agreement.

3.3 The Parties acknowledge and agree that the details of Sojern's Processing of Customer Personal Data (including the respective roles of the Parties relating to such Processing) are as described in Annex 1 (Data Processing Details) to the DPA.

4. SOJERN PERSONNEL

Sojern shall take commercially reasonable steps to ascertain the reliability of any Sojern Personnel who Process Customer Personal Data, and shall enter into written confidentiality agreements with all Sojern Personnel who Process Customer Personal Data that are not subject to professional or statutory obligations of confidentiality.

5. SECURITY

5.1 Sojern shall implement and maintain technical and organisational measures in relation to Customer Personal Data designed to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access as described in Annex 4 (Security Measures) (the “Security Measures”).

5.2 Sojern may update the Security Measures from time to time, provided the updated measures do not materially decrease the overall protection of Customer Personal Data.

6. SUB-PROCESSING

6.1 Customer generally authorizes Sojern to appoint Sub-Processors in accordance with this Section 6.

6.2 Sojern may continue to use those Sub-Processors already engaged by Sojern as at the date of this DPA (as those Sub-Processors are shown, together with their respective functions and locations, in the Sub-Processor list contained in Annex 5 (the “Sub-Processor List”).

6.3 Sojern shall give Customer prior written notice of the appointment of any proposed Sub-Processor, including reasonable details of the Processing to be undertaken by the Sub-Processor, by updating Customer with the changes to the Sub-Processor List via email sent to Customer’s contact point as set out in Annex 1 (Data Processing Details). Company may object to a new sub-processor by submitting an objection by email to sojernprivacy@Sojern.com with subject line “Sub-processor Objection,” along with a contact’s name, company’s name, name of the Sojern product or service, name of the sub-processor, and a justifiable ground for objection. If Client does not object within ten (10) days following an update to the list of sub-processors, the new sub-processor(s) will be deemed accepted. If Company reasonably objects to a change and Sojern is unable to resolve such objection, Company may terminate the Agreement and DPA.

6.4 With respect to each Sub-Processor, Sojern shall maintain a written contract between Sojern and the Sub- Processor that includes terms which offer at least an equivalent level of protection for Customer Personal Data as those set out in this DPA (including the Security Measures).

10. AUDIT RIGHTS

10.1 Sojern shall make available to Customer on request, such information as Sojern (acting reasonably) considers appropriate in the circumstances to demonstrate its compliance with this DPA and Applicable Data Protection Laws.

10.2 Subject to Sections 10.3 to 10.4, in the event that Customer (acting reasonably) is able to provide documentary evidence that the information made available by Sojern pursuant to Section 10.1 is not sufficient in the circumstances to demonstrate Sojern compliance with this DPA, Sojern shall allow for and contribute to audits by Customer or an auditor mandated by Customer in relation to the Processing of Customer Personal Data by Sojern.

10.3 Prior to conducting any audit, Customer must submit a detailed proposed audit plan providing for the confidential treatment of all information exchanged in connection with the audit and any reports regarding the results or findings thereof. The proposed audit plan must describe the proposed scope, duration, and timing of the audit. Sojern will work cooperatively with Customer to agree on a final audit plan. After the audit is completed, Customer will promptly share the results of the audit with Sojern.

10.4 If the controls or measures to be assessed in the requested audit are addressed in a SOC 2 Type 2, ISO, NIST or similar audit report performed by a qualified third-party auditor within twelve (12) months of Customer’s audit request (“Audit Report”) and Sojern has confirmed in writing that there are no known material changes in the controls audited and covered by such Audit Report(s), Customer agrees to accept provision of such Audit Report(s) in lieu of requesting an audit of such controls or measures.

12. LIABILITY

The total aggregate liability of either Party towards the other Party, howsoever arising, under or in connection with this DPA and the SCCs (if and as they apply) will under no circumstances exceed any limitations or caps on, and shall be subject to any exclusions of, liability and loss agreed by the Parties in the Agreement; provided that, nothing in this Section 12 will affect any person’s liability to Data Subjects under the third-party beneficiary provisions of the SCCs (if and as they apply).

14. CHANGE IN LAWS
Sojern may on notice vary this DPA to the extent that (acting reasonably) it considers necessary to address the requirements of Applicable Data Protection Laws from time to time, including by varying or replacing the SCCs in the manner described in Paragraph 3.3 of Annex 2 (European Annex).

Name:

Sojern, Inc.

Address:

575 Market Street, 4th Floor, San Francisco, CA 94105 USA

Contact Details for Data Protection:

Paul Huie, Sojern SVP and General Counsel
sojernprivacy@Sojern.com

Sojern Activities:

Under the Agreement, Sojern provides AI concierge, reputation management, and/or guest marketing services, depending on the specific capabilities for which Customer has contracted.

Role:

Processor

Name:

The entity or other person who is a counterparty to the Agreement.

Address:

• Customer’s address is the address shown in the Agreement entered into by and between the Customer and Sojern; or
• if the Agreement does not include the address, the Customer’s principal business trading address unless otherwise notified to sojernprivacy@Sojern.com
  

Contact Details for Data Protection:

Customer’s contact details are:

• the contact details shown in the Agreement; or
• if the Agreement does not include the contact details, Customer’s contact details submitted by Customer and associated with Customer’s account for the Services – unless otherwise notified to sojernprivacy@Sojern.com

Customer Activities:

Customer’s activities relevant to this DPA are the use and receipt of the Services under and in accordance with, and for the purposes anticipated and permitted in, the Agreement as part of its ongoing business operations.

Role:

• Controller – in respect of any Processing of Customer Personal Data in respect of which Customer is a Controller in its own right; and
• Processor – in respect of any Processing of Customer Personal Data in respect of which Customer is itself acting as a Processor on behalf of any other person (including its affiliates if and where applicable).

Categories of Data Subjects:

Relevant Data Subjects include any Data Subjects Customer causes Sojern to process as part of the provisions of the Service, including:

• Marketing prospects
• Customer’s own guests, customers, website visitors, or mobile app visitors
• End-users and other users of Customer’s products and services

Categories of Personal Data:

Relevant Personal Data includes any Categories of Data Customer causes Sojern to process as part of the provisions of the Service, including:

• Contact information – e.g., name, home and/or business address, email address, telephone details and other contact information.
• Booking and stay information – e.g., end users’ booking details and dates, stay preferences, and user ratings and reviews.
  Messaging information – e.g., the contents of messages between Customer and end users, contained in email, SMS, or other messaging channels.

Sensitive Categories of Data, and associated additional restrictions/safeguards:

None

Additional safeguards for sensitive data:

N/A

Frequency of transfer:

Ongoing – as initiated by Customer in and through its use, or use on its behalf, of the Services.

Nature of the Processing:

Processing operations required in order to provide the Services in accordance with the Agreement.

Purpose of the Processing:

Customer Personal Data will be processed:

1. as necessary to provide the Services as initiated by Customer in its use thereof, and

2. to comply with any other reasonable instructions provided by Customer in accordance with the terms of this DPA.

Duration of Processing / Retention Period:

For the period determined in accordance with the Agreement and DPA, including Section 9 of the DPA.

Transfers to (sub)processors:

Transfers to Sub-Processors are as, and for the purposes, described from time to time in the Sub-Processor List.

1. PROCESSING OF CUSTOMER PERSONAL DATA‍

1.1 Where Sojern receives an instruction from Customer that, in its reasonable opinion, infringes the GDPR, Sojern shall inform Customer.

1.2 Customer acknowledges and agrees that any instructions issued by Customer with regards to the Processing of Customer Personal Data by or on behalf of Sojern pursuant to or in connection with the Agreement shall be in compliance with the GDPR and all other applicable laws.

‍2. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION‍

2.1 Sojern, taking into account the nature of the Processing and the information available to Sojern, shall provide reasonable assistance to Customer, at Customer’s cost, with any data protection impact assessments and prior consultations with Supervisory Authorities which Customer reasonably considers to be required of it by Article 35 or Article 36 of the GDPR, in each case solely in relation to Processing of Customer Personal Data by Sojern.

2.2 Except to the extent prohibited by applicable law, Customer shall be fully responsible for all time spent by Sojern (at Sojern’s then-current professional services rates) in Sojern’s provision of any cooperation and assistance provided to Customer under Paragraph 2.1, and shall on demand reimburse Sojern any such costs incurred by Sojern.

3. RESTRICTED TRANSFERS

‍‍EU Restricted Transfers‍

3.1 To the extent that any Processing of Customer Personal Data under this DPA involves an EU Restricted Transfer from Customer to Sojern, the Parties shall comply with their respective obligations set out in the SCCs, which are hereby deemed to be:

‍UK Restricted Transfers‍

3.2 To the extent that any Processing of Customer Personal Data under this DPA involves a UK Restricted Transfer from Customer to Sojern, the Parties shall comply with their respective obligations set out in the SCCs, which are hereby deemed to be:

Adoption of new transfer mechanism‍

3.3 Sojern may on notice vary this DPA and replace the relevant SCCs with:

Note

• In the context of any EU Restricted Transfer, the SCCs populated in accordance with Part 1 of this Attachment 1 are incorporated by reference into and form an effective part of the DPA (if and where applicable in accordance with Paragraph 3.1 of Annex 2 (European Annex) to the DPA).

• In the context of any UK Restricted Transfer, the SCCs as varied by the UK Transfer Addendum and populated in accordance with Part 2 of this Attachment 1 are incorporated by reference into and form an effective part of the DPA (if and where applicable in accordance with Paragraph 3.2 of Annex 2 (European Annex) to the DPA).

1. SIGNATURE OF THE SCCs:

‍Where the SCCs apply in accordance with Paragraph 3.1 of Annex 2 (European Annex) to the DPA each of the Parties is hereby deemed to have signed the SCCs at the relevant signature block in Annex I to the Appendix to the SCCs.

2. MODULES

‍The following modules of the SCCs apply in the manner set out below (having regard to the role(s) of Customer set out in Attachment 1 to Annex 2 (European Annex) to the DPA):

3. POPULATION OF THE BODY OF THE SCCs‍

3.1 For each Module of the SCCs, the following applies as and where applicable to that Module and the Clauses thereof:

4. POPULATION OF ANNEXES TO THE APPENDIX TO THE SCCs

‍4.1 Annex I to the Appendix to the SCCs is populated with the corresponding information detailed in Annex 1 (Data Processing Details) to the DPA, with:

4.2 Part C of Annex I to the Appendix to the SCCs is populated as below:
The competent supervisory authority shall be determined as follows:

• Where Customer is established in an EU Member State: the competent supervisory authority shall be the supervisory authority of that EU Member State in which Customer is established.
  
• Where Customer is not established in an EU Member State, Article 3(2) of the GDPR applies and Customer has appointed an EU representative under Article 27 of the GDPR: the competent supervisory authority shall be the supervisory authority of the EU Member State in which Customer’s EU representative relevant to the processing hereunder is based (from time-to-time).
  
• Where Customer is not established in an EU Member State, Article 3(2) of the GDPR applies, but Customer has not appointed an EU representative under Article 27 of the GDPR: the competent supervisory authority shall be the supervisory authority of the EU Member State notified in writing to Sojern’s contact point for data protection identified in Attachment 1 to Annex 2 (European Annex) to the DPA, which must be an EU Member State in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located.
  

4.3 Annex II to the Appendix to the SCCs is populated as below:

General:

• Please refer to Section 5 of the DPA and Annex 4 (Security Measures) to the DPA.
  
• In the event that Customer receives a Data Subject Request under the EU GDPR and requires assistance from Sojern, Customer should email Sojern contact point for data protection identified in Annex 1 (Data Processing Details) to the DPA.

Sub-Processors: When Sojern engages a Sub-Processor under these Clauses, Sojen shall enter into a binding contractual arrangement with such Sub-Processor that imposes upon them data protection obligations which, in substance, meet or exceed the relevant standards required under these Clauses and the DPA – including in respect of:

• applicable information security measures;
  
• notification of Personal Data Breaches to Sojern;
  
• return or deletion of Customer Personal Data as and where required; and engagement of further Sub-Processors.

1. Definitions. In this Annex, the terms “business purpose”, “commercial purpose”, “personal information”, “sell”, “service provider” and “share” shall have the respective meanings given thereto in the CCPA. CCPA and other capitalized terms not defined in this Schedule are defined in the DPA.

2. Sojern’s Obligations.‍

2.1 The business purposes and services for which Sojern is Processing personal information are for Sojern to provide the services to and on behalf of Customer as set forth in the Agreement.

2.2 It is the Parties’ intent that with respect to any personal information, Sojern is a service provider. Sojern (a) acknowledges that personal information is disclosed by Customer only for the limited and specific purposes described in the Agreement; (b) shall comply with applicable obligations under the CCPA and shall provide the same level of privacy protection to personal information as is required by the CCPA; (c) agrees that Customer has the right to take reasonable and appropriate steps under Section 10 (Audit Rights) of this DPA to help ensure that Sojern’s use of personal information is consistent with Customer’s obligations under the CCPA; (d) shall notify Customer in writing of any determination made by Sojern that it can no longer meet its obligations under the CCPA; and (e) agrees that Customer has the right, upon notice, including pursuant to the preceding clause, to take reasonable and appropriate steps to stop and remediate unauthorized use of personal information.

2.3 Sojern shall not (a) sell or share any personal information; (b) retain, use or disclose any personal information for any purpose other than for the business purposes specified in the Agreement, including retaining, using or disclosing the personal information for a commercial purpose other than the business purpose specified in the Agreement, or as otherwise permitted by CCPA; (c) retain, use or disclose the personal information outside of the direct business relationship between Sojern and Customer; or (d) combine personal information received pursuant to the Agreement with personal information (i) received from or on behalf of another person, or (ii) collected from Sojern’s own interaction with any consumer to whom such personal information pertains.

2.4 Sojern shall implement reasonable security procedures and practices appropriate to the nature of the personal information received from, or on behalf of, Customer, in accordance with Section 5 (Security) and Annex 4 (Security Measures) of the DPA.

2.5 When Sojern engages any Sub-Processor, Sojern shall notify Customer of such Sub-Processor engagements in accordance with Section 6 (Sub-Processing) of the DPA.

As from the Addendum Effective Date, Sojern will implement and maintain the Security Measures as set out in this Annex 4.

1. General. Sojern will establish, implement, and maintain appropriate administrative, technical and organizational measures that are designed to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data. These measures will be adequate to comply with applicable data protection laws and Sojern will comply at all times with its information security policies and information security program.
2. Information Security Policies and Standards. Sojern will maintain information security policies, standards, and procedures. These policies, standards, and procedures shall be kept up to date, and revised whenever relevant changes are made to the information systems that use or store Personal Data.
3. Vulnerability Management. Sojern will maintain a vulnerability management program for all systems that process Personal Data that includes without limitation internal and external vulnerability scanning with risk rating findings and formal remediation plans to address any identified vulnerabilities.
4. Risk Assessment. Sojern will conduct periodic risk assessments to identify and assess reasonably foreseeable risks to the security, confidentiality, and integrity of records containing Personal Data and evaluate and improve, where necessary, the effectiveness of its safeguards for limiting those risks.
5. Data Classification. Sojern will maintain policies and procedures to classify sensitive information assets, clarify security responsibilities, and promote awareness for all employees.
6. Encryption. Sojern will implement industry standard encryption mechanisms and strong cipher suites (AES 256- bit is recommended) for storage and transmission. Sojern will accept connections over encrypted channels (TLS is recommended).
7. Network Security. Sojern will secure its network by employing a defense-in-depth approach that utilizes commercially available equipment and industry standard techniques, including without limitation firewalls, intrusion detection systems, access control lists, and routing protocols.
8. Virus and Malware Controls. Sojern will protect Personal Data from malicious code and will install and maintain anti-virus and malware protection software on any system that handles Personal Data.
9. Access Control. Sojern will practice the principle of least privilege where access to Personal Data is only granted to those within the organization who have a business need for such access and permissions will be limited to the minimum amount required to perform the specific job function.
10. Processing Location. Personal Data will be Processed by Sojern in the United States, subject to applicable data protection laws that may require otherwise.
11. Incident Response. Sojern will maintain a data security incident response program and will document all suspected data security incidents. Sojern will investigate any data security incidents and take all necessary steps to eliminate or contain the data security incident.
12. Personnel. Sojern will maintain an information security awareness and training program and will train critical Sojern personnel on data protection measures and general cybersecurity protections.
13. Vendor. Sojern will maintain a vendor management program that will assess all vendors with whom Sojern exchanges Personal Data. Such vendors will be held to data security standards no less restrictive than those set forth herein.

Sojern may update or modify these Security Measures from time to time provided that such updates and modifications do not decrease the overall security of Customer Personal Data.

To support delivery of our Services, Sojern engages certain Sub-Processors to Process Customer Personal Data in accordance with the terms and conditions of the Guest Experience Solutions Data Processing Agreement (the “DPA”). This list contains information about such Sub-Processors engaged by Sojern from time to time to Process Customer Personal Data.

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TRAVELER AUDIENCES SERVICE SCHEDULE

Unless otherwise defined in this Service Schedule for the Traveler Audiences Service, capitalized terms will have the meaning given to them in the Agreement. Specific terms described below will only be applicable if Traveler Audiences are purchased.

1. Definitions

“Platform Account” means the Customer account in the applicable Platform.

“Deal ID” means a unique, alphanumeric identifier assigned to a Customer by Sojern indicates Customer’s use of Sojern Audience in their campaigns on the Platform.

“Platform” means any demand-side platform or online application that is used for digital advertising services by the Customer, as identified by the Customer in documentation provided to Sojern.

“Sojern Audiences” means Sojern’s proprietary and licensed custom audience data.

“Traveler Audiences Service(s)” means the service of providing Sojern’s Audiences to the Customer Platform Account based on the targeting criteria agreed upon by Customer and Sojern.

2. Provision of Services

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