Guest Experience Platform Service Schedule
Exhibit A – Service Level Agreement
Exhibit B – Guest Experience Solutions Data Processing Addendum
Traveler Audiences Service Schedule
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:
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.
“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, SFTP, Log Files, SDK integration), 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 Platform”/“GEP” 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 Affiliate" means any Affiliate of Sojern, including without limitation RateGain Travel Technologies Limited and any entity directly or indirectly controlled by RateGain Travel Technologies Limited. For the avoidance of doubt, a Sojern Affiliate must satisfy the definition of Affiliate; set out above at the time of any access to or use of Customer Materials or Service Data.
“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.
2.1 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 and Sojern Affiliates may each use, analyze, process, store and combine Service Data with other data provided that any Sojern Affiliate access to and use of the Service Data shall be (i) solely for the purposes set forth in this Section 2.3, ii) where Service Data includes personal data, subject to the requirements of Exhibit D (Data Processing Agreement) and any applicable sub-processor agreements.. Sojern, and Sojern Affiliates may use the Service Data to improve the Sojern Technology and Services, and other programs or solutions including within the Sojern Affiliate group, create analytics, reports, and audiences. Customer may only use the Sojern Technology according to the limitations set forth in the Agreement.
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.
4.1 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.
5.1 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 and Sojern Affiliates 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 or support the Sojern Services, including by or through Sojern Affiliates acting in support of such provision; (ii) to serve the Customer Ad Content on Sojern Networks; (iii) create custom audiences; and (iv) in order to create advertisements, emails, and other messaging for Customer and Customer’s business, to be served on Sojern Networks, through email marketing campaigns, SMS, WhatsAPP and other messaging platforms, push notifications, and other communication channels. (“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.
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.
7.1 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 and consent to access: (a) the designated website(s), and (b) the Customer Materials and any other content provided by Customer to Sojern. The Customer represents and warrants that the Customer Materials (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. Customer shall have the sole responsibility for the accuracy, quality, and legality of Customer Materials provided and the means by which Customer acquired the Customer Materials.
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.
8.1 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, and where Sojern is the Receiving Party, to Sojern Affiliates as permitted under Section 2.3 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 (and Sojern Affiliates, where applicable) 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.
9.1 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.
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.
11.1 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.
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): 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.
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.
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.
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.
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.
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.
“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.
2.1 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.
3.1 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:
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.
4.1 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:
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:
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:
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:
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:
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 Termination. Either Party may terminate such Agreement(s) without cause upon seven (7) days’ prior written notice, which notice may be given by electronic mail.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.
8.4 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.
8.5 Effect of Termination for Non-Reconcilable 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.
Unless otherwise defined in this Service Schedule for the Guest Experience Platform (“GEP”), capitalized terms will have the meaning given to them in the Agreement. Specific terms described below will only be applicable if Guest Experience Platform 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 Platform 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 Platform, 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 Platform cannot be shared by Users, (but may be reassigned to a new User replacing a person who no longer requires access to GEP) and are licensed based on a per room or property model. Customer’s use of the Guest Experience Platform 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 Platform 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, bounce rates, spam-complaint rates, the number of outbound calls made to a Customer’s API within a specified period of time, the number of messages the GEP will send to the End User within a specified period of time, or other deliverability metrics exceeding industry-accepted thresholds. Customer acknowledged that exceeding these other limitations may cause GEP to malfunction, may accrue additional Fees, or may result in immediate suspension of Customer’s email campaigns or access the Guest Experience Platform until compliance has occurred.
3. GEP 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 GEP Privacy Policy found at https://www.sojern.com/privacy/gep-privacy-policy. Customer and Sojern agree that the processing of any personal data under the Guest Experience Platform 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 Experience Platform allows Customers the ability to send and receive SMS, email, WhatsApp, and other types of messages (collectively, "Messaging", and each channel a "Messaging Channel"). Customer represents and warrants that, with respect to each Messaging Channel used through the Guest Experience Platform
6. Support, & Service Warranty
6.1 Sojern shall provide support for the Guest Experience Platform in accordance with the applicable plan selected by Customer under the Order Form.
6.2 Sojern warrants that the Guest Experience Platform 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 GEP. The Order Form will state the Term for the Guest Experience Platform 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 GEP 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 GEP renewal term in accordance with the terms set forth in the Agreement.
This GEP Level Agreement (“SLA”) applies to your use of the Guest Experience Platform and is governed by the Guest Experience Platform 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.
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. INTERPRETATION
1.1 In this DPA the following terms shall have the meanings set out in this Section 1, unless expressly stated otherwise;
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).
7. DATA SUBJECT RIGHTS
7.1 Sojern, taking into account the nature of the Processing of Customer Personal Data, shall provide Customer with such assistance as may be reasonably necessary and technically feasible to assist Customer in fulfilling its obligations to respond to Data Subject Requests. If Sojern receives a Data Subject Request, Customer will be responsible for responding to any such request.
7.2 Sojern shall:
8. PERSONAL DATA BREACH
Breach notification and assistance
8.1 Sojern shall notify Customer without undue delay upon Sojern’s discovering a Personal Data Breach affecting Customer Personal Data. Sojern shall provide Customer with information (insofar as such information is within Sojern’s possession and knowledge and does not otherwise compromise the security of any Personal Data Processed by Sojern) to allow Customer to meet its obligations under the Applicable Data Protection Laws to report the Personal Data Breach. Sojern’s notification of or response to a Personal Data Breach shall not be construed as Sojern’s acknowledgement of any fault or liability with respect to the Personal Data Breach.
8.2 Sojern shall reasonably co-operate with Customer and take such commercially reasonable steps as may be directed by Customer to assist in the investigation of any such Personal Data Breach.
8.3 Customer is solely responsible for complying with notification laws applicable to Customer and fulfilling any third-party notification obligations related to any Personal Data Breaches.
Notification to Sojern
8.4 If Customer determines that a Personal Data Breach must be notified to any Supervisory Authority, any Data Subject(s), the public or others under Applicable Data Protection Laws, to the extent such notice directly or indirectly refers to or identifies Sojern, where permitted by applicable laws, Customer agrees to:
9. RETURN AND DELETION
9.1 Subject to section 9.2, in the event of termination of the Agreement, Sojern shall, at the choice of the Customer, delete or irreversibly anonymize all Customer Personal Data processed for the Services, or return all such Customer Personal Data to Customer.
9.2 Sojern may retain Customer Personal Data where permitted or required by applicable law, for such period as may be required by such applicable law, provided that Sojern shall:
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.
11. CUSTOMER’S RESPONSIBILITIES
11.1 Customer agrees that, without limiting Sojern’s obligations under Section 5 (Security), Customer is solely responsible for its use of the Services, including
11.2 Customer shall ensure:
(i) and (ii) relating to the Processing by Sojern of Customer Personal Data. Customer, upon request by Sojern, will provide proof that any required consents have been obtained by the Customer.
11.3 Customer agrees that the Service, the Security Measures, and Sojern’s commitments under this DPA are adequate to meet Customer’s needs, including with respect to any security obligations of Customer under Applicable Data Protection Laws, and provide a level of security appropriate to the risk in respect of the Customer Personal Data.
11.4 Customer shall not provide or otherwise make available to Sojern any Customer Personal Data that contains any
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).
13. SERVICE DATA
13.1 Customer acknowledges that Sojern may collect, use and disclose Service Data for its own business purposes, such as:
13.2 In respect of any such Processing described in Section 13.1, Sojern:
13.3 For the avoidance of doubt, this DPA shall not apply to Sojern’s collection, use, disclosure or other Processing of Service Data, and Service Data does not constitute Customer Personal Data.
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).
15. INCORPORATION AND PRECEDENCE
15.1 This DPA shall be incorporated into and form part of the Agreement with effect from the Addendum Effective Date.
15.2 In the event of any conflict or inconsistency between:
Sojern, Inc.
575 Market Street, 4th Floor, San Francisco, CA 94105 USA
Under the Agreement, Sojern provides AI concierge, reputation management, and/or guest marketing services, depending on the specific capabilities for which Customer has contracted.
Processor
The entity or other person who is a counterparty to the Agreement.
Customer’s contact details are:
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.
Relevant Data Subjects include any Data Subjects Customer causes Sojern to process as part of the provisions of the Service, including:
Relevant Personal Data includes any Categories of Data Customer causes Sojern to process as part of the provisions of the Service, including:
None
N/A
Ongoing – as initiated by Customer in and through its use, or use on its behalf, of the Services.
Processing operations required in order to provide the Services in accordance with the Agreement.
Customer Personal Data will be processed:
For the period determined in accordance with the Agreement and DPA, including Section 9 of the DPA.
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
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:
4.3 Annex II to the Appendix to the SCCs is populated as below:
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:
1. UK TRANSFER ADDENDUM
1.1 Where relevant in accordance with Paragraph 3.2 of Annex 2 (European Annex) to the DPA, the SCCs also apply in the context of UK Restricted Transfers as varied by the UK Transfer Addendum in the manner described below -
1.2 In relation to any UK Restricted Transfer to which they apply, where the context permits and requires, any reference in the DPA to the SCCs, shall be read as a reference to those SCCs as varied in the manner set out in Paragraph 1.1 of this Part 2.
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.
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 Platform 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.
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.
“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.
Unless otherwise defined in this Service Schedule for the Measurement & Analytics Services Schedule ("Measurement Schedule"), capitalized terms used but not defined in this Measurement Schedule shall have the meanings set forth in the Agreement. Specific terms described below will only be applicable if Measurement Services are purchased.
"Attribution Measurement" means the process by which Sojern measures the influence of Customer's media exposures (impressions, clicks, or other interactions) on downstream traveler behavior, including bookings, searches, credit card spend and engagement with specific destinations or travel products, as reported through the Impact Platform.
"Consortium" means the Sojern Measurement Consortium, a shared data environment in which Customer's first-party data, media logs, and site data are ingested, tokenized, and measured against Sojern's real-time travel data signals to produce Attribution Measurement and performance insights.
"Impact Platform" means Sojern's proprietary UI-based measurement and analytics platform through which Customer accesses Attribution Measurement results, performance insights, and reporting dashboards based on real booking and search data.
"Log File(s)" means raw impression or exposure files generated by Customer's DSP or media platform partners that are submitted into the Consortium for Attribution Measurement purposes, as further described in Section 3.3.
"Measurement Services" means the suite of measurement, attribution, and analytics services provided by Sojern to Customer under this Measurement Schedule, including access to the Impact Platform, the Consortium, and associated Professional Services hours, as set forth in the applicable Order Form and Exhibit A thereto.
"Privacy Tokens" means the anonymized, tokenized identifiers used by Sojern to map Customer Materials within the Consortium to Sojern's unique identity graph.
"Private Data Partners" means third-party data sources (e.g., theme parks, tourist sites, experience providers) that Customer nominates to contribute data into the Consortium for measurement purposes, subject to Section 3.6.
"SDK Integration" means the implementation of Sojern's software development kit on Customer's Digital Assets to capture site activity data and route it to the Customer's dedicated Integrated Data Repository.
"Supported Platforms" means the DSP and media platforms for which Log File ingestion is supported by Sojern for Attribution Measurement purposes, as provided for by Sojern.
2.1 Service Components. Subject to Customer's payment of the applicable Fees and compliance with this Measurement Schedule and the Terms, Sojern will provide Customer with access to the service components set forth in the applicable Order Form and attached Exhibit.
2.2 Non-Inclusions. Unless expressly stated in the applicable Order Form, Measurement Services do not include: (a) analytics reporting packages or beyond those described in the Order Form; (b) custom or special reporting, which will be scoped separately and billed at the rate set forth in the Order Form; or (c) any advertising campaign management, media buying, or targeting services, which are governed by the Media Services Schedule.
2.2 Non-Inclusions. Unless expressly stated in the applicable Order Form, Measurement Services do not include: (a) analytics reporting packages or beyond those described in the Order Form; (b) custom or special reporting, which will be scoped separately and billed at the rate set forth in the Order Form; or (c) any advertising campaign management, media buying, or targeting services, which are governed by the Media Services Schedule.
2.3 Impact Platform Access. Sojern grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Impact Platform during the Term solely for Customer's internal business purposes to review Attribution Measurement results and performance insights. Customer shall not share Impact Platform access credentials with unauthorized third parties. Customer may request Sojern to provide client access to the Platform to its client and Customer shall be responsible for all use and activity on the Platform by the client, including any breach of the terms and conditions of the Agreement. Customer will promptly notify Sojern to remove Platform access if client is no longer a direct client of Customer.
3.1 Pixel Placement. Where requested by Sojern and as necessary to enable Measurement Services, Customer agrees to: (a) place or facilitate the placement of Pixels in advertising with participating Partners; (b) install or facilitate the installation of Pixels on Customer's Digital Assets and email communications; and (c) cooperate with Sojern as reasonably necessary to enable delivery of Measurement Services.
3.2 Data Submission Requirements. Customer is responsible for ensuring that all Customer Materials submitted for Measurement Services: (a) are accurate and complete in all material respects; (b) have been collected and processed in compliance with applicable privacy laws, including the CCPA, GDPR, and any other applicable data protection regulations; (c) do not include any data that Customer does not have the right to submit; and (d) do not contain unencoded personally identifiable information (PII) unless expressly agreed to in writing by Sojern; (e) must be hashed prior to submission.
3.3 Log File Submission — Supported Platforms. Log File ingestion for Attribution Measurement is only supported for Consortium, and the platforms provided by Sojern. Any platform not listed is subject to a separate feasibility review by Sojern and may be added to Customer's contract following such review.
3.4 SDK Integration. If Customer elects to enable SDK Integration for Consortium, Customer will implement the SDK on its designated Digital Assets in accordance with Sojern's documentation and technical specifications (as further governed by Section 2.3 of the Terms). Customer acknowledges that SDK-collected data will be routed to Customer's dedicated instance within the Consortium.
3.5 Data Warehouse Access and Use Restrictions. Where applicable, if Customer is granted access to Sojern's data warehouse environment (including any Google BigQuery project or equivalent data storage) as part of the Measurement Services, Customer's access and use of such environment is subject to the following restrictions:
3.6 Private Data Partners. Customer may nominate Private Data Partners to contribute data into the Consortium for measurement purposes, subject to: (a) prior written approval by Sojern; (b) separate scoping with Sojern's technical consulting and data science teams; (c) execution of any required data sharing agreements between Customer, the relevant Private Data Partner or with Sojern; and (d) such Private Data Partner's compliance with applicable privacy laws and Sojern's data standards. Private Data Partner functionality is not included as a default service component and additional fees may apply.
3.7 Cooperation. Customer shall provide timely cooperation, access, and information reasonably required by Sojern to implement, maintain, and improve the Measurement Services, including providing access to relevant advertising accounts, data feeds, and technical environments as needed.
4.1 Customer Material Ownership. As between the Parties, Customer retains all ownership rights in and to Customer Materials. Customer grants Sojern a limited, non-exclusive license to receive, process, tokenize, store, and analyze Customer Materials solely for the purpose of providing Measurement Services to Customer during the Term.
4.2 Sojern Travel Data. Attribution Measurement results are produced by measuring Customer Materials against Sojern's proprietary real-time travel data signals (bookings, searches, and related travel intent data, “Sojern Travel Data”). As between the Parties, Sojern retains all ownership rights in and to the Sojern Travel Data, the Consortium infrastructure, any generated reports, Sojern’s data warehouse, the Impact Platform. No transfer of ownership of Sojern's Travel Data or platform is effected by this Measurement Schedule.
4.3 Privacy Tokenization. All Customer Materials ingested into the Consortium will be tokenized using Sojern's Privacy Token / RampID framework. Customer acknowledges that this tokenization is required for Measurement Services and constitutes a technical prerequisite for ingestion into the Consortium.
5.1 Documentation. Sojern will maintain technical documentation for Log File ingestion specifications, Pixel implementation, and SDK integration as updated from time to time. Customer is responsible for monitoring and implementing updates to such documentation.
5.2 Platform Updates. Sojern may update or modify the Impact Platform, the Consortium infrastructure, or the Supported Platforms list from time to time. Sojern will provide Customer with reasonable advance notice of material changes that may affect Customer's use of the Measurement Services. Sojern shall not be liable for any interruption in Measurement Services arising from Customer's failure to implement required updates.
5.3 Supported Platforms Changes. Sojern reserves the right to add or remove platforms from the Supported Platforms list. Where a platform used by Customer is removed from the Supported Platforms list, Sojern will provide at least thirty (30) days' prior written notice, and the Parties will cooperate in good faith to identify an alternative ingestion method.
6.1 Measurement Methodology. Customer acknowledges that Attribution Measurement results represent Sojern's analysis of the relationship between media exposure and travel behavior signals within the Consortium, and are not a guarantee of actual bookings generated or revenue attributable to Customer's campaigns. Results are provided for informational and optimization purposes only.
6.2 Third-Party Dependencies. The accuracy and completeness of Measurement Services may be affected by factors outside Sojern's control, including: (a) the quality, completeness, and timeliness of Customer Materials and Log Files submitted by Customer; (b) the availability and format of data from DSP and media platform Partners; (c) changes to third-party platform APIs or data formats; and (d) privacy regulatory changes that affect data signal availability (e.g., cookie deprecation, consent rate changes).
6.3 No Warranty on Results. SOJERN DOES NOT WARRANT THAT MEASUREMENT SERVICES WILL PRODUCE ANY PARTICULAR OUTCOME, ATTRIBUTION RESULT, OR LEVEL OF MEASUREMENT ACCURACY. MEASUREMENT SERVICES ARE PROVIDED "AS IS" WITH RESPECT TO MEASUREMENT OUTCOMES.
7.1 Term. This Measurement Schedule shall remain in effect for the duration of the applicable Order Form Term, unless earlier terminated in accordance with the Terms.
7.2 Effect of Termination. Upon expiration or termination of the applicable Order Form:
(a) Access Termination. Customer's access to the Impact Platform, the Consortium, and the data warehouse environment shall immediately terminate. Customer shall cease all use of the Measurement Services, including any access to or querying of the data warehouse, as of the termination date.
(b) Export Window. Sojern will make Customer Materials available for export for a period of [30] days following termination, after which Customer Materials will be deleted or anonymized in accordance with Sojern's data retention policies. Customer is solely responsible for exporting any Customer Materials it wishes to retain within this window. Sojern shall have no liability for any Customer Materials not exported within the permitted export period.
(c) Cessation of Use of Sojern Data. Upon termination, Customer shall immediately cease all use of: (i) Sojern's travel intent data, travel signals, and any data derived from Sojern's proprietary data assets; (ii) any Attribution Measurement results, reports, or insights generated through the Measurement Services that incorporate or are derived from Sojern's travel data signals; (iii) any audience segments, models, or analytical outputs built using or informed by Sojern data; and (iv) any data warehouse exports containing Sojern proprietary data elements. For the avoidance of doubt, Customer may retain and continue to use Attribution Measurement results that consist solely of aggregated, de-identified performance summaries of Customer's own campaign data, provided such results do not incorporate or expose Sojern's underlying travel data signals.
(d) Deletion of Sojern Data. Within thirty (30) days of the termination date, Customer shall permanently delete or destroy: (i) all copies of Sojern travel intent data, travel signals, and any Sojern proprietary data elements in Customer's possession or control, whether stored in Customer's own systems, third-party applications, or BI/reporting tools; and (ii) any data exports from the data warehouse that contain Sojern proprietary data. Upon Sojern's written request, Customer shall provide written certification of such deletion signed by an authorized representative of Customer within ten (10) business days of such request.
(e) Survival of Use Restrictions. The restrictions set forth in Section 3.5 (Data Warehouse Access and Use Restrictions) and Section 3.5(h) (No Resale of Reports or Derived Data) shall survive termination of this Measurement Schedule and the Agreement indefinitely with respect to any Sojern proprietary data or derivatives thereof that remain in Customer's possession.
(f) Payment Obligations. All payment obligations for Fees incurred prior to the termination date shall survive termination and become immediately due and payable.
7.3 Non-Cancelable. Subscription to Measurement Services are non-cancelable before the Contract End Date, consistent with the Terms.