Please read these Terms and Conditions (“Terms”) carefully, because they, together with any commercial agreement, insertion order or other contract pursuant to which Sojern provides you with advertising services (an “Agreement”) between the Sojern entity addressed in the Agreement (“Sojern”) and you, the client (“Client”)(each of us a “Party” and together, the “Parties”), govern your use of the Sojern Technology and related Services. By signing an Agreement that references these Terms, you accept these Terms.
1. Definitions.
“Ad Content” means any content which promotes Client’s products and/or services, including, but not limited to, images, graphics, text, data, links or other digital objects or code.
“Facebook Services” means Sojern managing Client’s Facebook advertising campaigns through Sojern’s Facebook Business Manager Account, with Client allowing Sojern to purchase media and ad inventory on its behalf, and Sojern paying media costs associated with use of the Facebook Services.
“SEM Services” means search engine marketing services.
“Services” mean any and all of the services provided by Sojern pursuant to these Terms, including, without limitation, metasearch, Facebook Services and SEM Services (each as may be as applicable).
“Sojern Network” means websites that are not owned, operated, or controlled by Sojern, but on which Sojern has a contractual right to serve Ad Content and target users on behalf of Client.
“Sojern Technology” means Sojern’s proprietary technology used to provide the Services, display targeted Ad Content, track user actions, and provide reporting.
2. Client Account.
In order to use the Services, you may need to create a “Client Account“. If you establish a Client Account, you agree to provide accurate and truthful information when establishing your Client Account and to keep such information current. You will be responsible for all activity that occurs using your Client Account, including any losses incurred by Sojern or any other user of the Services resulting from your failure to maintain the secrecy of your account information.
3. Using Sojern Technology.
To enable Sojern to provide the Services, Sojern will provide Client with tracking pixels (the “Pixels”) for Client to implement on its designated website(s), as well as instructions for implementation. Client will secure any necessary authorizations for implementation and use of the Pixels. Sojern may provide Client with updated Pixels, (e.g. if necessary to update the Sojern Technology) and Client will promptly insert or implement such updated Pixels as instructed by Sojern. Client will not modify, or attempt to modify, such Pixels or any other part of the Sojern Technology, nor will Client reverse engineer, disassemble, decompile or otherwise analyze or alter any part of Sojern’s Network or Sojern’s Technology. Client will comply with any applicable laws and self-regulatory principles relating to the use of Pixels, including, where applicable, providing notice to and receiving consent from users when such users data is being collected by the Pixels.
4. Ad Content
Client will provide Sojern with the Ad Content, and if applicable, other Client materials reasonably requested by Sojern, in order to enable Sojern to perform its duties under applicable Agreement(s). All Ad Content provided by Client shall adhere to Sojern’s Advertising Guidelines. Client hereby grants Sojern a non-exclusive, perpetual, fully paid up, royalty free, transferable, worldwide license, with a right to sublicense, to use, reproduce, distribute copies of, modify, create derivative works based upon, publicly perform and publicly display and otherwise exploit the Ad Content, and if applicable, any other Client content provided to Sojern or Client content (e.g. logos, marks, etc.) which is publicly available on Client’s website(s), to be used: (i) as necessary to provide the Services; (ii) to serve the Ad Content on Sojern Networks; and (iii) if applicable, in order to create advertisements for Client and Client’s business, to be served on Sojern Networks (“Sojern-Created Content”). Sojern reserves the right, in its sole discretion, to reject or remove any Ad Content from the Sojern Network at any time. Sojern will use commercially reasonable efforts to obtain Client’s approval of Sojern Created Content prior to distribution on the Sojern Network; provided, however, failure by Client to expressly reject Sojern Created Content (and non-material variations thereof), will constitute approval by Client. Client agrees that Sojern may: (i) edit Ad Content provided by Client with respect to Ad Content size and format; and (ii) test performance of variations of Ad Content (e.g. exterior images vs. room images) to optimize performance of the Services.
5. Delivery of Ad Content.
Sojern will use diligent efforts to serve the Ad Content on the Sojern Network. The placement of such Ad Content throughout the Sojern Network and priority and frequency with which the Ad Content is served will be at Sojern’s sole discretion. Sojern reserves the right to limit, in its sole discretion, the provision and quantity of any feature or part of the Services to any person, entity or geographic area. Sojern also reserves the right to modify, amend, suspend, interrupt or terminate the Services, the Sojern Technology or the Sojern Network or any part thereof, at any time and for any reason, with or without notice to Client and without liability to Client or any third party.
Sojern does not control the context in which Ad Content is displayed. Client acknowledges and agrees that: (i) Ad Content may be displayed next to Client’s direct or indirect competitors; and (ii) that while Sojern uses commercially reasonable efforts to ensure that the Sojern Network does not include websites that are of a pornographic, defamatory, obscene or illegal nature, Sojern gives no guarantee or warranty of any kind that Ad Content may not be displayed in such context. Sojern expressly disclaims any and all liability in connection therewith and Client hereby waives any legal or equitable rights or remedies Client may have against Sojern with respect thereto. As Client’s sole and exclusive remedy in such case, Sojern will, upon Client’s written request, promptly remove such Ad Content.
6. SEM Services.
SEM Services may be made available to Client, at Client’s express election. If Client engages Sojern to provide SEM Services (where available), the following additional terms shall apply: Client agrees to permit Sojern to set up and manage search engine marketing accounts for Client and its properties using products such as Google Ads and Microsoft Bing Ads. As part of the SEM Services, Client agrees that Sojern may (among other actions), create ad groups and copy, create and update keyword lists, and perform keyword targeting on Client’s behalf. Client further agrees to: (i) provide Sojern with all necessary information and materials to perform the SEM Services; (ii) be responsible for ensuring that all of such information and materials are accurate and complete; and (iii) continue to exclusively own all rights in such information and materials. Client 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 Client and Client’s properties, and acknowledges that failing to abide by this restriction may result in suspension of Client’s Google Ads or Bing accounts by the applicable provider. If Client wishes to contact Google directly regarding any questions of concerns about the SEM Services provided on Google Ads, Sojern will, upon written request, provide Client with its Client ID for their Google Ads account(s).
Sojern represents and warrants that: (i) in performing the SEM Services via Google Ads, Sojern partners with Google and complies with the Google Third-Party Policy; (ii) Sojern will pay for all media fees associated with SEM Services, and will not charge a 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 Client’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.
7. Facebook Services.
Facebook Services may be made available to Client, at Client’s express election. If Client engages Sojern to provide Facebook Services (where available), the following additional terms shall apply: Client agrees to provide Sojern with all necessary information and materials to perform the Facebook Services, including, without limitation, rights and permissions related to the Client’s Facebook Ad account(s), Facebook Page(s), Facebook Catalog(s), Facebook Pixel(s); Client’s product feeds (data file containing property/product information (non-user data)); and Client’s creative data (image, video, HTML files). Client 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. Client will be responsible for all activity conducted by any employee/affiliate of Client who is given access by Sojern to the Facebook Ad Account.
8. Bookings Reports; Invoicing
Using the Sojern Technology, Sojern will track users who visit the Client’s website(s) as a result of Sojern’s provision of the Services (the “Sojern Users”), as well as the bookings initiated by Sojern Users during the term of the applicable Agreement(s) (the “Sojern Bookings”). This information will be made available in the Client Account where Client can view Sojern Bookings for the then-current month in a report format (the “Bookings Report”).
Clients will be responsible for paying Sojern for Sojern Bookings in accordance with the payment terms of the applicable Agreement(s) (the “Commission”). Unless otherwise agreed by the Parties, refundable cancellations and “no shows” (“Qualifying Exclusions”) will not be subject to Commission. Client is responsible for reconciling (via the Client Account) the Bookings Report(s) with the Client’s records of Qualifying Exclusions in order to determine the final monthly Commission. Bookings Reports will be available and updated daily during each month in the Client Account. Client will be able to reconcile Qualifying Exclusions in the Client Account beginning on the first day of each month, and concluding on the 8th day of the following calendar month. Commission calculations for each month will be considered final and undisputed as of the 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, Sojern will invoice Client for such final Commission. All invoices will be in the currency specified in the Agreement and exclusive of any sales, value added or similar tax which will be payable by Client at the time and in the manner required by law. Invoices will be sent to the contact address provided by Client in the Client 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.
9. Payment
Client will pay Sojern in accordance with the payment terms set forth in the applicable Agreement(s). Payment will be made using the method specified in the Client Account.
Late payment may result in suspension of your campaigns. In the event of late payment, Sojern will also be entitled, but not obligated, to charge interest on amounts overdue, from the due date until the date of actual payment, at a rate of 1.5% per month or the highest rate allowed by applicable law, whichever is lower, whether before or after any judgment.
10. Privacy Notice.
Client will include a privacy notice on its website(s) that complies with all applicable laws (including GDPR) and industry self-regulatory principles, and clearly states that when a user visits the Client’s website(s), Client and/or third parties may use pixel tags and place cookies on the user’s device that track such user’s behavior on that website and other third-party websites.
11. Collection and Use of Data.
Sojern will collect information about individuals who respond to, and interact with, the Ad Content as further described in its Privacy Policy. All data collected by Sojern as a result of its provision of the Services is referred to as “Property Solutions Data”. Sojern will be the owner of such Property Solutions Data. Client acknowledges and agrees that Sojern may use and disclose the Property Solutions Data in aggregated and pseudonymized form: (i) as part of Sojern’s commercial operations, as long as the use or disclosure of the Property Solutions Data does not individually identify the Client; (ii) to operate, manage, test, maintain and enhance the Services, the Sojern Technology and Sojern Network and other Sojern products, programs and/or services; and (iii) for other general business purposes, such as the creation of industry insights.
12. Intellectual Property.
All right, title and interest in and to: (i) the Services and all materials and methods used to provide the Services; (ii) the Sojern Technology; and (iii) the Property Solutions Data are owned by Sojern or its licensors, as applicable. All right, title and interest in and to the Ad Content is owned by Client. Client agrees that Sojern may use the Client’s name, trademarks, and/or logos: (i) on Sojern’s website; and (ii) in communications about its business partners, including, without limitation, webinars, pitch decks, communications with the press, and for customer references.
13. Representations and Warranties.
Client represents and warrants that: (i) it will comply with all applicable local, state, national and international laws, including, but not limited to, laws governing intellectual property and other proprietary rights, data protection and privacy, as well as U.S. export laws and regulations; (ii) it has any necessary authorizations to: (a) access the designated website(s), (b) insert or implement the Sojern Pixels on the designated website(s), or (c) use the Sojern Pixels previously installed on the designated website; and (iii) the Ad Content and any other content provided by Client to Sojern: (a) does not and will not infringe, violate or misappropriate any third-party rights, including any patent, trademark, trade secret, copyright, right of publicity, or any other intellectual property or proprietary right; and (b) complies with Sojern’s Advertising Guidelines and Client’s posted privacy notices. If you are a third party signing an Agreement on behalf of a property who will be identified as a Sojern Client in such Agreement, you represent and warrant: (i) that you are authorized to sign the applicable Agreement(s) on behalf of the ultimate Sojern Client; and (ii) you will assume liability for all invoices issued pursuant to the applicable Agreement(s) in the event the Sojern Client does not timely pay such invoices.
Sojern 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; and (ii) the Sojern Technology 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.
14. Indemnification.
Client will defend, indemnify and hold Sojern, and its officers, directors and employees, harmless from and against any and all claims, charges, complaints, proceedings, damages (direct or indirect), losses, liabilities, costs and expenses (including court costs and reasonable attorney’s fees) due to, arising out of, or relating in any way to: (i) a breach by Client of an Agreement (including these Terms); or (ii) the Ad Content or other content provided by Client to Sojern. Sojern will defend, indemnify and hold Client, and its officers, directors and employees, harmless from and against any and all claims, charges, complaints, proceedings, damages (direct or indirect), losses, liabilities, costs and expenses (including court costs and reasonable attorney’s fees) due to, arising out of, or relating in any way to a claim that the Sojern Technology infringes, violates or mis-appropriates any third-party rights, including any patent, trademark, trade secret, copyright, right of publicity, or any other intellectual property or proprietary right. Each Party agrees to defend, indemnify and hold the other Party and its officers, directors, and employees harmless from, against, and in respect of all liabilities resulting from any claim or allegation raised in conjunction with indemnifying Party’s gross negligence or willful misconduct under an Agreement.
15. Disclaimer of Warranties; Limitation of Liability.
The Services, the Sojern Network, and Sojern Technology are provided “as is” and “as available”, without any representations or warranties of any kind. In addition, there is no guarantee whether the Ad Content will be served at all and, if served, whether such Ad Content will lead to any clicks, leads or actual acquisitions. Except as explicitly stated herein, Sojern specifically disclaims all warranties and conditions with respect to the Services, the Sojern Network, and Sojern Technology, either express, implied or statutory, including, but not limited to, any implied warranties and/or conditions of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, quiet enjoyment, non-infringement of third party rights, and any warranties arising out of the course of dealing or usage of trade. Sojern does not warrant: (i) against interference with Client’s enjoyment of the Services; (ii) that the functions contained in the Services or performed by the Services will meet Client’s requirements; (iii) that the operation of the Services will be uninterrupted or error-free; (iv) that any part of the Services will continue to be made available; or (v) that defects in the Services will be corrected. No oral or written information or advice given by Sojern or an approved representative will create a warranty. In such jurisdictions that do not allow for the exclusion of implied warranties or limitations on statutory rights, the above exclusions and limitations will be valid to the fullest extent allowed by applicable law. Except where prohibited by law, in no event will Sojern or any of its affiliated entities be liable to Client 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 Services; (ii) any content made available through the 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 the 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 Client for the provision of the 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.
16. Modification of Terms and Agreements
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. Client’s continued use of the Services will indicate acceptance of such modified terms. If any modification is unacceptable to Client, Client’s sole and exclusive remedy is to terminate all Agreements incorporating these Terms.
Agreements may be modified: (i) in writing via electronic mail acknowledged by both Parties; (ii) via Client-initiated changes in the Client Account (where available); or (iii) via countersigned amendment. Notwithstanding the foregoing, modifications of the commission rates set forth in the Agreement can only be made: (i) via Client-initiated changes in the Client Account (where available); (ii) via countersigned amendment; or (iii) by execution of a new Agreement. Any negotiated changes to these Terms must be reflected in a countersigned writing.
17. Term and Termination; Effect of Termination.
These Terms shall remain in effect for the duration of the Agreement(s) into which they are incorporated. Unless otherwise specified in an 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. 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.
Upon termination of an Agreement, Sojern will deliver an invoice to you reflecting (i) remaining reservations attributable to the Services; (ii) the industry standard cancellation rate of twenty percent (20%); and (based on (i) and (ii)), the amounts payable to Sojern to satisfy your post-termination payment obligations. Payment is to be made in accordance with the payment terms set forth in your Agreement.
18. Confidentiality
“Confidential Information” will include: (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing Party (“Discloser”) when given to the receiving Party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Bookings Reports, and Commissions are specifically considered Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, affiliate, or third party who has a need to know, and who is bound by confidentiality and non-use obligations at least as protective as the confidentiality provisions are in this Section. Recipient will not use Discloser’s Confidential Information other than as provided for in the Agreement. Confidential Information will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either Party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure. A Party shall immediately notify the other Party in writing of all circumstances surrounding any possession, use or knowledge of Confidential Information by any person or entity other than those authorized by the Agreement. Both Parties acknowledge that, if a Party breaches (or attempts or threatens to breach) its obligations under this Section, the non-breaching Party will suffer irreparable harm. Accordingly, the Parties agree that the non-breaching Party shall be entitled to injunctive relief without limiting any other rights and remedies to which the non-breaching Party may be entitled to at law, inequity or under the Agreement.
19. Assignment.
In the event that Client 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 for future Bookings) will be binding upon the applicable purchaser, successor, transferee or assignee of Client (the “New Owner”) upon completion of such transaction. Client shall use best efforts to notify Sojern not less than fifteen (15) days prior to the completion of a Change of Control, which notice shall include contact information for the New Owner. If you fail to notify Sojern of the Change of Control, Sojern reserves the right to invoice you for Sojern Bookings driven prior to the Change of Control. Sojern may freely assign the Agreement(s).
20. Relationship Between the Parties.
Sojern and Client 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.
21. Governing Law.
With respect to any Agreement signed by Sojern, Inc., such Agreement(s) will be construed in accordance with the laws of the State of California, without regard to any conflict of law provisions, and any dispute arising hereunder will be resolved exclusively by the federal and state courts serving the County of San Francisco, California. 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, and any dispute arising hereunder will be resolved exclusively by the courts of the England and Wales. 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, and any dispute arising hereunder will be resolved exclusively by the courts of the Republic of Ireland. Client hereby consents and submits to the personal and exclusive jurisdiction of the applicable courts. Notwithstanding this, 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.
22. General Provisions.
The Agreement(s) executed between Sojern and Client constitute(s) the complete and exclusive agreement(s) between Sojern and Client with respect to the subject matter hereof, superseding and replacing any and all prior and contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter. In case of discrepancies between the provisions of the Agreement and these Terms, the provisions of the Agreement prevail. 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.
