Standard Property Manager Promotion Agreement
RedAwning.com Property Manager Promotion Agreement

This Property Manager Promotion Agreement is made and entered as of the later date to appear in the signature block on an associated RedAwning Participation Order or Participation Agreement (the “PA”) or on the date Property Manager completes and submits the online version of the PA (the “Effective Date”) by and between the Property Manager identified on the PA (hereinafter referred to as the “Property Manager”) and RedAwning.com, Inc. (“RedAwning.com” or “RedAwning”). As used herein, the term “Agreement” includes the PA, all Exhibits and linked pages and any amendments and addendums to any of the foregoing, which by this reference are each incorporated herein as though fully set forth.

Recitals

A. Property Manager is authorized to exclusively manage one or more properties or units (together, “Properties”; each a “Property”), to be identified by Property Manager, and desires to market and make the Properties available for short-term rental;
B. RedAwning markets short term property rentals and generates short-term rental bookings (each, a “Booking”) for and on behalf of property owners and managers through its proprietary websites, its mobile app, its distribution partner relationships, its suite of RedAwning Property Manager specific Website products and marketing services, and related activities (together, the “Services”); and
C. Property Manager desires to engage the Services to promote the Properties and facilitate Bookings and RedAwning desires to provide such Services all in conformance with the terms of this Agreement.

Agreement
Now therefore, in consideration of the mutual covenants and undertakings herein contained, the parties agree as follows:

1. RedAwning Services. RedAwning shall provide Property Manager the following Services:

a. RedAwning shall advertise the Properties for short-term rental pursuant to multiple digital methodologies, including without limitation, on web pages specifically devoted to each Property (each a “Property Page”) on RedAwning’s proprietary websites and RedAwning’s mobile App (“Websites“), on a Property Manager specific Website built and hosted by RedAwning (“PM Website Services”), exclusively on all major third party short term rental distribution channels and other RedAwning distribution partner websites, and on such other channels as RedAwning may add (together, “Channel Partners“) and such additional promotional methodologies, if any, that RedAwning may deploy from time to time. Property Pages shall include a description of each Property, including amenities, photos, and other information provided by Property Manager or RedAwning, as the case may be (the “Property Description”), and such other information as may be reasonably available to RedAwning or Channel Partners. PM Website Services products included in the Services may require Addenda entered into between Property Manager and RedAwning from time to time.

b. RedAwning shall host a Property-specific calendar (the “Property Calendar”) that shall enable users to view each Property’s availability and make Bookings conditioned on such user meeting any applicable requirements and/or conditions set forth in this Agreement, and the RedAwning Rental Agreement which can be found at https://www.redawning.com/content/rental-agreement (the“Rental Agreement”) and is incorporated herein by reference. Users that make Bookings are herein defined as “Guests”.

c. For each Booking, RedAwning shall:

i. Collect and process in advance of any tenancy all required base rental amounts (“Base Rent”), cleaning and other required fees (together, “Property Manager Fees“) (Property Manager Fees and Base Rent, together, “Gross Rent”), any room-related taxes and assessments (together, “Taxes“), and any additional charges or fees for services, goods and benefits provided by RedAwning and/or third-party vendors (together, “RedAwning Fees“) for the time period(s) selected by the Guest in accordance with (1) each Property’s then current Base Rent schedule established by Property Manager and/or RedAwning, as the case may be, (2) applicable Tax regulations, and (3) the RedAwning Rental Policies (“Rental Policies”) set forth in the Rental Agreement, as such policies may be amended from time to time in RedAwning’s sole reasonable discretion;

ii. Provide the Property Manager via email, insertion into the Property Manager’s property management system and/or the RedAwning Portal, the Guest’s contact information received by RedAwning, such as email address and telephone number. Provide the Guest via email and the RedAwning mobile App Property Manager’s contact information;

iii. Pay credit card services fees and process any refunds due Guests for cancelled Bookings in accordance with this Agreement and the Rental Policies;

iv. In the event RedAwning cannot collect all or any portion of the Gross Rent, Taxes and/or Fees from a Guest through an authorization against such Guest’s credit card, RedAwning shall use reasonable efforts to contact the Guest and collect in advance of the Booking commencement date alternative payment. If such Guest is unable or unwilling to pay all required amounts, the Booking shall be cancelled according to its terms.

d. For each Booking, if applicable, perform the Repair Obligation in respect to Covered Damage as defined and described in Section 5 below.

e. Any other Smart Services performed by RedAwning, when available, and the related fees payable by Property Manager, if any, shall be as specified in one or more Smart Service Addenda entered into by the parties from time to time, and which by this reference are incorporated herein as though fully set forth, provided, that the terms of the Smart Service Addenda shall control conflicting terms in this Property Manager Promotion Agreement.

2. Rent Collection and Assignment.

a. RedAwning shall pay Property Manager, as consideration for a confirmed Booking, the Gross Rent and Taxes collected by RedAwning, less the Participation Fee (as defined below), any applicable Smart Service fees or co-pays, credit card processing fees (credit card processing fees are three percent (3%) of the Gross Rent and Taxes), RedAwning Fees, and any amounts disputed by Guest (such adjusted amount, “Net Rent”). Property Manager’s right to payment of Net Rent accrues if and only to the extent: (i) RedAwning collects the related Gross Rent, Taxes and fees; and (ii) Guest’s right, if any, to dispute any charge or receive any whole or partial refund thereof has expired or is terminated.

b. The agreement between Property Manager and RedAwning set forth in this Section 2 is strictly an assignment of a limited right to collect and receive Gross Rent and Taxes and does not result in RedAwning assuming any other right or obligation of Property Manager in respect to the Properties. Property Manager acknowledges and agrees that RedAwning shall deposit Gross Rent and Taxes collected and received in respect to the Properties into a Stripe Connect account.

c. RedAwning shall trigger Stripe Connect to remit to Property Manager via ACH deposit accrued Net Rent due and payable to Property Manager hereunder the sooner of the first business day after Guest check out or five (5) days after Guest check in.  If any jurisdiction requires a Channel Partner or RedAwning to pay any portion, or all, of the Taxes related to a Booking directly to that jurisdiction due to marketplace facilitator or other laws, then RedAwning shall deduct such Taxes from payments to Property Manager and notify Property Manager of such amounts.

d. Property Manager acknowledges and agrees that RedAwning is only responsible for forwarding Net Rent to Property Manager. RedAwning is not responsible for any financial arrangements, tax liability or transfers between Property Manager and any other entity, person or governmental authority with an interest in or right to all or any portion of the Property, Net Rent, Taxes, or other amount in any way related to the Property or Booking activities herein contemplated, including without limitation, any property owner, owner association and/or taxing authority.

e. If a Guest attempts at any time to dispute or chargeback, through its credit card issuer or otherwise, any payments previously collected in respect to a Booking, Property Manager shall fully cooperate with RedAwning and Guest to promptly resolve such dispute. In the event such dispute results in the reimbursement of all or any portion of the disputed amounts, RedAwning and Property Manager shall each contribute toward such reimbursement amount in the pro rata proportion of the amounts each party is entitled to receive in respect to the Gross Rent, Taxes and fees, unless Property Manager has elected to join the Chargeback Protection Program option in the PA, in which case chargeback losses shall be absorbed by RedAwning as part of this program. The parties acknowledge and agree that RedAwning shall have sole discretion to resolve the Guest dispute and pay or return any amounts in satisfaction thereof. Property Manager shall reimburse RedAwning upon demand Property Manager’s pro rata share of the returned sum, which amount shall be satisfied by credit memo or direct payment at RedAwning’s election.

f. Timely cancellations of Bookings shall result in (1) the return to the Guest by RedAwning of collected Gross Rent and Taxes amounts, if any, as provided in the Rental Agreement, and (2) distribution by RedAwning to Property Manager of any non-refundable collected amounts net of the Participation Fee and processing fees (“Net Collections“). Notwithstanding the foregoing, if Property Manager’s own posted cancellation policy or the cancellation policy that the Property Manager selected in the PA offers more flexible or lower cost terms than the policy in the Rental Agreement, or if Property Manager agrees with the Guest in a specific instance to such lower cost or more flexible terms, then for timely cancellations of Bookings conforming to Property Manager’s posted cancellation policy, selected cancellation policy, or agreement with the Guest, RedAwning will distribute to Property Manager any non-refundable collected amounts, net of the Participation Fee and processing fees, based on the most favorable policy to the Guest of Property Manager’s own posted cancellation policy, Property Manager’s selected cancellation policy in the PA, or Property Manager’s agreement with Guest. In all cases, for customer service and channel management purposes, RedAwning may allow Guests to cancel Bookings within two (2) business days of making a Booking without charge, even if that policy is inconsistent with the Rental Agreement or Property Manager’s own posted or selected cancellation policy.

g. RedAwning and its Channel Partners require that Guests be allowed to cancel their Bookings if there is a Force Majeure Event impacting multiple properties such as a (natural) disaster, hurricane, volcanic eruption, flood, national or local emergency, mandatory evacuation, terrorism, civil disorder, close down of airports or any other exceptional or catastrophic event, circumstance or emergency. In addition, Airbnb offers an Extenuating Circumstances Policy which allows Guests to receive a partial or complete refund due to Guest-specific issues such as a death in the family. In the event of any cancellation or refund due to any of these requirements, RedAwning and Property Manager shall each contribute toward such reimbursement amount in the pro rata proportion of the amounts each party is entitled to receive under this Agreement in respect to the Gross Rent, Taxes and fees. RedAwning may in its sole discretion satisfy Property Manager’s reimbursement obligation hereunder by issuance of a credit memo against future Booking fees otherwise payable to Property Manager hereunder.

3. Participation Fee.  In consideration of the Services herein provided, RedAwning shall receive a fee (the “Participation Fee”) for each Booking calculated as a percentage of the Gross Rent, as specified in the PA either as a Net Rate Discount percentage or a Participation Fee Commission percentage.

4. Channel Marketing Fee.  RedAwning shall pay any fees related to Bookings taken via channel and distribution partners, including Bookings taken via RedAwning Websites (“Channel Marketing Fees”) as part of the Services, and such Channel Marketing Fees shall be added to the prices paid by Guests on such channels.  Channel Marketing Fees for channel partners, such as Airbnb, Booking.com, Expedia, Vrbo, and others, shall be the actual fees paid to such channels for marketing and distribution. 

5. Property Manager Obligations. Property Manager shall perform the following obligations:

a. Establish and periodically update as necessary the required Property Description information for each Property for use on the Property Pages. Property Manager shall also include for display on the Property Pages, when available, recent digital images of each Property (together, ”Photos”). RedAwning may also include digital images of such Property submitted to RedAwning by Guests or taken by RedAwning sourced photographers (together, “RA Photos”). In addition, in respect to each Booking, Property Manager shall provide to RedAwning at least seven (7) days in advance the check-in information for each Guest and deliver the Property in arrival-ready condition upon Guest’s arrival (Booking commencement date), including without limitation, fresh linens and a professional standard of cleanliness. The Property Description and Photos shall be at all times accurate, truthful, up to date and not misleading in all material respects and both RedAwning and Guests shall have the right to rely on such data in all matters in any way related to Bookings and the Services hereunder.

All Property appliances, utilities and advertised amenities must be fully functioning and operating at 100% capacity. The Property and contents must meet applicable governmental and industry hygiene, security, safety and fire regulations and standards. If the Property is deemed uninhabitable for safety, hygiene or maintenance reasons and Guest must be relocated to an alternative property, Property Manager must organize and pay for all related relocation expenses, including any additional rental charges. If the Property is technically habitable, but is not fully consistent with the representations on the Property Page or does not meet reasonable expectations, Guest is entitled to financial compensation from Property Manager in an amount to be negotiated in good faith by Property Manager and Guest. In the event Property Manager fails or refuses to so negotiate with the Guest promptly and in no event more than five (5) calendar days following request by RedAwning, RedAwning may, in its sole discretion and on Property Manager’s behalf, perform such negotiations and agree on and issue financial compensation. Property Manager shall reimburse RedAwning such compensation amount upon demand, which amount shall be satisfied by credit memo or direct payment at RedAwning’s election.

b. Establish and periodically update as necessary a written or API-provided Base Rent schedule for each Property, setting forth all required, then current cleaning fees, per diem and weekly rental rates, special and/or holiday rates, applicable Taxes, if any, and such additional fees and payments to be withheld from and/or paid by a Guest of the Property. Property Manager shall timely provide the Base Rent schedule, and all updates thereto, to RedAwning and both Guests and RedAwning shall each have the right to rely on the most recent Base Rent schedule provided by Property Manager in, respectively, renting each Property and performing the Services as herein contemplated. Property Manager acknowledges and agrees that the Base Rent and other fees, if any, Property Manager charges Guests shall be no less favorable to the Guest than rates Property Manager charges other Guests in like circumstances and on its own website. Without limiting the generality of the foregoing sentence, Property Manager agrees not to pass on the cost of the Participation Fee to Guests by way of increased rents, fees, assessments or otherwise.

c. Pay when due all required Taxes, fees, assessments and other costs, if any, related to each Property, including any Bookings sourced through the Services.

d. Establish and continuously update as necessary, or provide via API, the Property Calendars, including without limitation, entering the dates each Property is not available for Bookings for any reason whatsoever (together, “Black-Out Dates”), including for the use thereof by Property Manager or other third-parties. Property Manager shall enter each Black-Out Date on the Property Calendar immediately as it becomes known to Property Manager. In the event Property Manager’s failure to perform in accordance with this Section 4.d.results in a scheduling conflict between a Booking and a Black-Out Date, the Booking shall supersede and take precedence over the Black-Out Date. In no event may Property Manager cancel a Booking otherwise properly made by a Guest for the purpose of replacing the Booking with a more desirable reservation with overlapping dates or for personal use, including use by a property owner, their friends or family members.  Property Manager acknowledges and agrees that the Property Calendar and Black-Out Dates made available to RedAwning and Guests will be the same Property Calendar and Black-Out Dates offered by Property Manager via its own website and to other marketing channels.  Calendar availability parity is a requirement of RedAwning and its Channel Partners.  

e. Notify RedAwning immediately in the event (i) any Booking conflicts with a Black-Out Date, (ii) any issue, question, concern or dispute arises or is made known to Property Manager in respect to a Property, a Booking, a Guest or any other matter in respect to the Services, or (iii) of a casualty adversely affecting a Property subject to a Booking.

f. Notify RedAwning, within 24 hours following the expiration or earlier termination of a Booking term (i) of any reasons to hold all or any part of any payment to Property Manager instead of refunding same to Guest, and (ii) of any Covered Damage or other claims to be submitted. In all instances, RedAwning shall have the right to rely on Property Manager’s instructions in respect to collected payments and refunds. In the event of any dispute, RedAwning shall use commercially reasonable efforts to resolve the dispute in accordance with the dispute resolution policies set forth herein.

g. Promptly respond to, and use reasonable, good faith efforts to timely resolve, any Guest complaint within 6 hours of notice thereof. Such notice may be from Guest or RedAwning. If a Property Manager is unwilling or unable to timely resolve a Guest complaint, then RedAwning may, but is not obligated to, in its sole reasonable discretion investigate and resolve the complaint on behalf of Property Manager, including reimbursement of an amount equal to all or any portion of the Gross Rent collected from the Guest (less the Participation Fee), which amount Property Manager hereby acknowledges and agrees RedAwning may deduct by way of credit memo from any sums then or thereafter due Property Manager hereunder, regardless of source.

RedAwning may, in its sole discretion, suspend or terminate the Services in respect to a Property due to Guest complaints and notify Guests of all pending Bookings of such Property of RedAwning’s election to terminate or suspend the Services, as the case may be, and Property Manager hereby agrees to defend, indemnify and hold RedAwning harmless from any claims or liability arising from or related to such suspension or termination.

h. At all times maintain the Properties in good, clean and habitable condition and in conformance with all applicable international, foreign, federal, state, local and association laws, regulations, ordinances, rules and covenants (together, “Laws”). In furtherance of this Section 4.h., Property Manager shall enter into and maintain, and timely pay and perform when due, its duties under, contracts with such third-party service providers to the Properties, including by way of example only, utilities, waste disposal, house cleaning and yard maintenance services, as may be necessary or required to satisfy its obligations hereunder.

i. At all times during the term hereof, insure that for each Property, the property owner or the Property Manager maintains sufficient, appropriate and customary types and amounts of insurance relating to each Property including: (1) general property damage insurance covering fire, flood and/or other casualty on a per occurrence basis; (2) liability for bodily injury on a per occurrence basis; and (3) comprehensive general liability insurance. Such policies of insurance shall include coverage for the third-party rental and Service activities herein contemplated. At RedAwning’s request, Property Manager shall provide RedAwning with any necessary documentation, including certificates of insurance, evidencing the required coverage hereunder.

j. Upon RedAwning’s request, provide proof to RedAwning’s reasonable satisfaction of Property Manager’s sole right, license and authority to rent each Property to third parties, enter into this Agreement to effect such rentals through RedAwning, and receive Net Rents as herein contemplated.

k. Maintain at all times accurate and complete contact information on the applicable Website and/or Smart Service-related administration page(s), including without limitation, Property Manager’s name, full street and, if different, postal address(es), email address, daytime and evening phone numbers, and cell phone number. In addition, Property Manager shall include all such data for any authorized local agent of Property Manager with access to the Properties and authority to resolve any Guest questions or issues in respect to a then current Booking.

l. In no event will Property Manager at any time offer Guests rates or terms that are inconsistent with the agreed to terms for a Booking that has already been confirmed. If any such terms are offered, RedAwning shall have the right to match those rates or terms while otherwise preserving the payment obligations and other terms Property Manager has agreed to in this Agreement.

6. Damage Protection Program.

a. Program Description. As a convenience and inducement to Guests to rent the Properties, Property Manager has agreed in the Property Rental Agreement with each Guest of a Property promoted by RedAwning via the Services to a partial waiver and release (the “Waiver“) of the Guest from liability for timely submitted claims solely and specifically limited to damage to the Property caused by the unintentional, non-breaching acts or omissions of the Guest or its authorized guests (the “Covered Damage“) in an amount not to exceed three thousand United States dollars (US$3,000) (the “Damage Protection Cap“). In exchange for the Waiver, the Guest is paying a fee set by RedAwning in its sole discretion, that is included as a RedAwning Fee for purposes of this Agreement.

b. Repair Obligation. For and in exchange for the payment of the RedAwning Fee, RedAwning hereby agrees to repair or replace the Covered Damage to the Property, and to indemnify Property Manager for the related actual direct costs of such repair or replacement (together, the “Repair Obligation“); provide in no event shall the Repair Obligation of RedAwning for a single Booking exceed the Damage Protection Cap; and provided, further, that in no event shall RedAwning’s total Repair Obligation for all Properties of the Property Manager promoted by RedAwning pursuant to the Services exceed twelve thousand United States dollars (US$12,000) in any twelve (12) consecutive calendar month period.

c. Property Manager Alternative. Notwithstanding anything in this Section 5to the contrary, if Property Manager charges Guests for its own damage protection program, the provisions of Section 5 a. and b.shall not apply, RedAwning shall have no obligation or liability in respect to any Covered Damage or other casualty, and Property Manager hereby waives, releases and indemnifies RedAwning from liability in respect to same. In this case, Property Manager also agrees to provide the same level of damage protection to Guests as RedAwning provides, and also to follow the same process for easy claims without requiring guest involvement in the claims process.

7. Proprietary Rights.

a. The Services, the Website, all Smart Service functionality, products and services (exclusive of “work for hire” deliverables, if any, specifically identified in an applicable Addendum for which RedAwning has been fully compensated), the proprietary trademarks, service marks and logos of the RedAwning Group companies, the Property Pages, the Property Calendars, the RA Photos, the advertising and marketing copy appearing anywhere on or in connection with the foregoing, the underlying software platform design, algorithms and related applications supporting the Services, all domestic and foreign patent, trademark and copyrights in any way related to the Services, and any updates thereto (together “RedAwning IP”) are the sole and exclusive property of RedAwning. RedAwning hereby grants to Property Manager, during the term of this Agreement, a limited, revocable, non-exclusive, royalty-free, worldwide right and license to access and use the RedAwning IP in strict conformance with the terms of this Agreement. All such use by Property Manager shall inure to the benefit of RedAwning, and Property Manager shall not acquire or retain any right in or to the RedAwning IP except to the limited extent herein set forth. Property Manager shall cease use of all or any aspect of the RedAwning IP immediately upon written demand by RedAwning, and the limited license herein granted shall cease immediately upon the expiration or earlier termination of this Agreement.

b. Property Manager hereby grants to RedAwning, during the term of this Agreement, a limited, revocable, non-exclusive, royalty-free, worldwide right and license to publish the Property Description information, Photos, promotional creative authored by or on behalf of Property Manager and Property Manager’s owned and licensed trademarks, service marks and logos (together, “Property Manager IP”) to promote the Properties in strict conformance with the terms of this Agreement. Without limiting the generality of the foregoing, the license granted herein includes the right, without limitation, for RedAwning to reproduce the Property Manager IP in digital form, to edit and make derivative works of such materials, and to publish the foregoing on the Websites, in applicable Smart Service and Channel Partner environments and in such other media as RedAwning may elect all for the purpose and in furtherance of promoting the Properties as herein contemplated. Additionally, Property Manager grants to RedAwning a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, non-terminable, transferable, sublicensable license to any underlying copyright in the subject of the RA Photos in order for RedAwning to exercise its rights in the RA Photos as herein contemplated. All use of the Property Manager IP by RedAwning shall inure to the benefit of Property Manager, and RedAwning shall not acquire or retain any right in or to the Property Manager IP except to the limited extent herein set forth. RedAwning shall cease use of all or any aspect of the Property Manager IP immediately upon written demand by Property Manager, and the limited license herein granted shall cease immediately upon the expiration or earlier termination of this Agreement.

8. Communications, Confidentiality and Data Security.

a. Unless otherwise agreed by the parties in writing, all communications between RedAwning and Property Manager shall be by email.

b. Except as provided in this Section 7, any confidential information or proprietary data provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or developed and collected by the Disclosing Party under this Agreement shall be deemed the Disclosing Party’s confidential information (together, “Confidential Information”). Confidential Information shall be maintained in the strictest confidence and shall be protected by security measures consistent with the security measures the Receiving Party maintains in protecting its confidential and proprietary information. Confidential Information shall not be released by the Receiving Party to anyone except an employee or agent who has a need to know same, and who is bound by confidentiality obligations no less restrictive as those set forth herein, or as otherwise may be compelled by law or legal process. The Receiving Party will not use any portion of the Disclosing Party’s Confidential Information for any purpose other than for performing its obligations under this Agreement. Upon termination of this Agreement or the earlier demand of the Disclosing Party, all Disclosing Party Confidential Information in the possession or control of the Receiving Party, in whatever form or medium, shall be promptly, in the alternative, either destroyed by the Receiving Party or delivered to the Disclosing Party. Notwithstanding the foregoing, all data, including without limitation, personally identifiable information disclosed by Guests and/or gathered or obtained by RedAwning in the performance of this Agreement on behalf of Property Manager as well as the terms of this Agreement, including the financial terms hereof, are the sole and exclusive property of RedAwning and deemed the Confidential Information of RedAwning for all purposes.

c. RedAwning shall at all times during the term of this Agreement prominently post on the Website, and adhere to, a privacy policy that conforms to all applicable Laws.

d. Property Manager acknowledges and agrees to RedAwning’s Data Privacy and Messaging Guidelines, attached hereto as Exhibit A, which form an integral part of this Agreement. Without limiting the generality of the foregoing, Property Manager agrees to comply with all applicable Laws in respect to data confidentiality, security and management.

9. Property Casualty and Sale.

a. In the event a Property is materially damaged or destroyed prior to or during a Booking, Property Manager shall, at Guest’s sole election, (i) immediately relocate Guest to an alternative accommodation in relatively close proximity to the Property having comparable size, quality, appointment and amenities to the Property (an “Alternative Property”) at no additional cost to Guest; or (ii) return an amount equal to the Gross Rent for that period remaining in the Booking period as of the date of the Property casualty; provided, that Property Manager’s obligation to relocate Guest to an Alternative Property is enforceable only to the extent such accommodation is then reasonably available (cost is not a factor in determining the availability of an Alternative Property).

b. In the event a Property is sold during the term of this Agreement, (i) the purchaser thereof must honor all Bookings pending as of the sale closing date; or in the alternative, (ii) Property Manager shall secure a comparable or better Alternative Property for each Guest affected by such sale at no additional cost to Guest.

c. In the event a Property is listed for sale during the term of this Agreement, (i) in no event shall Property showings occur at any time during a Booking; and (ii) Property Manager shall notify RedAwning in writing that the Property has been listed for sale and identify the requested date of Property Page and other Property-specific promotional activity de-activation, if any.

10. Representations and Warranties.

a. By Property Manager. Property Manager represents and warrants that (i) it has full power and authority to enter into this Agreement; (ii) entering into and performance of this Agreement by Property Manager does not violate, conflict with, or result in a material default under any other, contract or agreement to which Property Manager is a party, or by which it is bound; (iii) it has the sole right and authority, pursuant to applicable Law or contract, to enter into this Agreement and rent the Properties to third parties as herein contemplated; (iv) it shall perform its obligations hereunder in compliance with all applicable Laws; and (v) the Property Manager IP provided by Property Manager for placement or use on the Website and in applicable Smart Service media and Channel Partner environments does not and shall not infringe, violate or misappropriate any third-party copyright, patent, trade secret, trademark, property or privacy right, nor display, publish or promote sexually explicit content, intolerance, violence or hate or constitute libel, defamation, or invasion of privacy.

b. By RedAwning. RedAwning represents and warrants that (i) it has full power and authority to enter into this Agreement; (ii) entering into and performance of this Agreement by RedAwning does not violate, conflict with, or result in a material default under any other contract or agreement to which RedAwning is a party, or by which it is bound; (iii) it shall perform its obligations hereunder in compliance with all applicable Laws; and (iv) the Website content, in form provided by RedAwning, does not and shall not infringe, violate or misappropriate any third-party copyright, patent, trade secret, trademark, property or privacy right, nor display, publish or promote sexually explicit content, intolerance, violence or hate or constitute libel, defamation, or invasion of privacy.

11. Indemnification. Each party shall defend, indemnify and hold the other party harmless from and against any claim, loss, damage, suit or proceeding (together “Claim”) suffered or brought by a third party against the indemnified party resulting from breach of the indemnifying party’s obligations, representations and warranties set forth in this Agreement, and shall pay all damages or settlement amounts awarded by final decree or award against the indemnified party only to the limited extent such amounts are based on such Claim (including payment of reasonable attorney’s fees, court costs and costs of other professionals); provided that (a) written notice of the Claim is promptly provided by the indemnified party to the indemnifying party; and (b) the indemnifying party has sole control of the defense of the Claim and all related settlement negotiations, provided that no settlement requiring action or forbearance on the part of the indemnified party shall be entered into without the prior written consent of the indemnified party, which shall not be unreasonably withheld or delayed. The foregoing indemnities shall survive the expiration or termination of this Agreement.

12. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY WARRANTS AND NEITHER SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICES, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER SIMILAR INJURY, DAMAGE OR DISRUPTION OF ANY KIND. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATION UNDER SECTION 7 HEREOF AND INDEMNITY LIABILITY FOR BREACHES OF ITS REPRESENTATIONS AND WARRANTIES, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE TOTAL NET RENT PAID OR PAYABLE BY REDAWNING TO PROPERTY MANAGER FOR BOOKINGS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY FIRST AROSE.

13. Term & Termination

a.  This Agreement shall continue for a term of one year from the Effective Date (“Initial Term”) and will automatically renew for successive one year periods (each a “Renewal Term”) unless terminated by either party by written notice delivered to the other party at least thirty (30) days prior to the expiration of the then current Term; provided, that all Bookings pending as of the effective date of termination shall remain effective and enforceable, and each of Property Manager and RedAwning shall honor and fully perform its obligations hereunder in respect to such Bookings; and provided, further, that RedAwning may at any time suspend the Services without terminating the Agreement, including temporarily disabling any or all related Property Pages and/or Smart Services, pending resolution of a Property non-conformity, a Property Manager performance or Booking issue, or any other cause that RedAwning concludes, in its sole reasonable discretion, requires resolution to RedAwning’s reasonable satisfaction before reinstating the Services.

b.  Either party may at any time (i) terminate this Agreement, or (ii) remove then selected Channel Partners from the RA Network on which the Properties are displayed, with or without cause, upon not less than thirty (30) days prior written notice to the other party, provided, however that if Property Manager exercises its termination or removal rights under this Section 12.b. during the Initial Term, Property Manager shall pay RedAwning an early termination fee as follows: (x) in the event of Agreement termination, $100 per Property; and (y) in the event of Channel Partner removal, $25 per Property per Channel Partner removed; provided, however, that no fee will be payable for a Channel Partner removed by Property Manager for repeated and documented non-compliance issues. Property Manager acknowledges and agrees that the early termination fee herein specified is intended as compensation for RedAwning’s investment in the development and support of Property Manager’s Property pages affected by the termination decision. RedAwning shall deduct any early termination fees due under this Section 12.b. from sums otherwise due Property Manager hereunder.

14. Miscellaneous Provisions.

a. The provisions of this Agreement and the associated PA, Exhibits and Addenda shall be binding upon and shall inure to the benefit of the parties and their respective heirs, estates, personal representatives, parent and subsidiary entities, officers, directors, shareholders, members, successors and permitted assigns. This Agreement may not be assigned to any third party by either party without the prior written notice to and consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, that no such consent shall be required in event of an assignment resulting from a merger or asset sale transaction involving a party.

b. The laws of the State of California will govern the construction and enforcement of this Agreement and the parties agree that any litigation pertaining to this Agreement shall exclusively be in courts located in Alameda County, California. The parties hereby waive any objections based upon the jurisdiction, forum or venue of such courts.

c. In the event a dispute between the parties arises out of or relating to this Agreement, including with respect to any Bookings, Guests or sums billed, collected and/or distributed hereunder, the parties shall first attempt to resolve the dispute through informal good faith negotiations entered into promptly upon the request of a party. In connection with such process, each party shall share all non-privileged and/or confidential information relating to such matter reasonably requested by the other party. In the event such dispute has not been successfully resolved within 30 days of the parties’ initial dispute resolution conversation, the matter shall be submitted to binding arbitration for resolution. Such arbitration shall be conducted by the Berkeley, California offices of the Judicial Arbitration and Mediation Services, or its successor (“JAMS”). Arbitration shall be conducted by JAMS in accordance with applicable JAMS rules governing the resolution of commercial disputes, generally, provided that notwithstanding any contrary provision within the JAMS rules, the arbitrator shall determine the rights and obligations of the parties according to the substantive laws of the State of California. The parties shall share equally in the cost of the arbitration subject to the arbitrator’s discretion to allocate such cost among the parties in accordance with equitable considerations. Any award, which may include legal and equitable relief, will be final and binding and judgment may be enforced by any court of competent jurisdiction.

d. The prevailing party in any suit or proceeding brought to interpret or enforce the terms of this Agreement shall be entitled to an award of all related costs, reasonable attorneys’ fees and the fees of other professionals incurred by the prevailing party in connection with such action.

e. Each of Property Manager and RedAwning specifically acknowledge and agree that Property Manager’s signing of the PA and, if applicable, an Addendum or clicking “I Agree” in the PA or Addendum submission process shall constitute Property Manager’s acceptance of the terms of this Agreement in full, and shall, without further act of either party, cause this Agreement to become immediately effective, binding on and enforceable against each party according to its terms.

f. This Agreement, including without limitation, the PA, any Addendum and any related linked pages, all of which the parties acknowledge are, collectively, herein included in the defined term “Agreement”, sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings, both oral and written, with respect to same.

g. If either party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the party invoking this provision, including but not limited to, acts of God, acts of civil or military authorities, riots or civil disobedience, wars, police actions, strikes or labor disputes, acts of terrorism, fires, severe weather events such as hurricanes, floods, heat waves, snow storms and tornadoes, and interruptions in telecommunications or Internet services or network provider services (each, a “Force Majeure Event”), such party’s performance shall be excused and the time for performance shall be extended accordingly, provided that the party immediately takes all reasonably necessary steps to resume full performance. If a party’s performance is prevented or delayed for more than thirty (30) consecutive days due to a Force Majeure Event, then the other party may terminate this Agreement upon delivery of written notice to the non-performing party. The parties acknowledge and agree that Bookings may be cancelled and Guest performance excused pursuant to Force Majeure Events as provided in this Agreement.

h. All notices, requests, demands and other correspondence (collectively “Notice”) hereunder shall be in writing and deemed delivered: (1) on the date Notice is sent by facsimile or electronic mail with electronic confirmation of receipt thereof by the other party; (2) one (1) business day after placing Notice with a national air courier service for delivery by next day air; or (3) three (3) business days following placement of Notice in the US Mail, registered or certified, postage prepaid, return receipt requested, addressed to the mailing address of the receiving party as reflected in the notifying party’s then current records.

i. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party except as specifically set forth herein. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.

j. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the invalid or unenforceable provision will be limited or eliminated to the minimum extent necessary.

k. The headings of the sections and subsections contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.

l. Each party agrees not to discriminate against any user or Guest on account of race, color, religion, sex, sexual orientation, marital status, disability or national origin.
IN WITNESS WHEREOF, by signing the PA or clicking “I Agree” in the PA submission process, Property Manager hereby accepts and agrees to be bound by the terms of this Agreement.

Exhibit A
RedAwning Data Privacy and Messaging Guidelines

These Data Privacy and Messaging Guidelines (the “Guidelines“) set forth the terms and conditions under which RedAwning provides its service to and for the benefit of Property Managers. By using the Services, Property Manager agrees to and accepts the following Guidelines.

1. Scope, Definitions and Interpretation
a. These Guidelines form an integral part of the Agreement between Property Manager and RedAwning and must be read in conjunction therewith. Except as otherwise provided for herein, the terms and conditions of the Agreement remain unchanged and in full force and effect. If there is conflict between these Guidelines and the Agreement, the terms of the Guidelines will prevail. Property Manager is aware that RedAwning’s Services are operated by RedAwning.com, Inc., a California corporation.
b. Unless defined otherwise in these Guidelines, capitalized terms have the same meaning as set out in the Agreement.

2. Data Privacy

a. Each Party shall take reasonable steps to protect personal data (i.e., information that relates to an identified or identifiable natural person) processed in the context of the Agreement against loss and unauthorized access, use, deletion and disclosure; and, as required by applicable laws, process personal data in a manner that ensures appropriate confidentiality and security of the personal data.b. Property Manager acknowledges that it is responsible for the handling and security of the personal data it holds and processes within the context of the Agreement and RedAwning acknowledges that it is responsible for the handling and security of the personal data it processes within the context of the Agreement. Property Manager shall provide personal data to RedAwning only if such disclosure is permitted under applicable laws. RedAwning shall be a data controller (i.e. determines the purposes and means of the data processing) for any personal data it processes. Each party shall be solely responsible for the processing of personal data by itself or on its behalf in accordance with applicable data protection laws. The parties shall, if required by applicable laws, cooperate in good faith and provide assistance in the event data subjects wish to exercise their rights of access, correction, erasure or portability, or in case of requests from competent authorities to demonstrate compliance with obligations applicable to the party.
c. To the extent RedAwning processes personal data that is not Guest data in association with the Agreement, such personal data shall be processed by RedAwning in accordance with the RedAwning Privacy Policy, which can be found on www.redawning.com. Property Manager warrants that it has, as required by applicable laws, duly and diligently informed (and as required by applicable laws, obtained consents from) its staff members, agents, representatives and other individuals about the processing of their personal data by RedAwning and the cross-border transfer of their personal data to countries that do not provide for adequate protection of rights of personal data subjects.
d. Property Manager shall process personal data that Property Manager received from RedAwning as part of the Services under the Agreement only so far as necessary to perform the requested reservation services, or as otherwise agreed to between the parties in writing, in accordance with applicable law, including (if applicable) Directive 95/46/EC and 2002/58/EC (as amended or replaced by subsequent legal acts) on the processing of personal data and the protection of privacy or the EU General Data Protection Regulation or if Property Manager has obtained explicit consent from the Guest to any other use of Guest’s personal data.
e. If Property Manager will or intends to notify Guests or other parties (e.g., competent data protection and/or government authorities) of a data breach (any discovered or suspected incident resulting in accidental, unlawful, or unauthorized destruction of, loss of, alteration of, access to, disclosure of, or use of personal data) involving personal data received by Property Manager from RedAwning, and the notification will reference RedAwning, Property Manager shall first, to the extent permitted by law, provide any draft notification and related correspondence to RedAwning and reasonably cooperate with RedAwning in finalizing such notification and correspondence and other communication that may follow with the Guests or authorities. Property Manager acknowledges that RedAwning retains the right to voluntarily inform its users about any such data breach. For the avoidance of doubt, Property Manager shall not notify Guests or other parties of a data breach involving personal data that RedAwning hosts on the RedAwning Portal or otherwise provides or has provided to Property Manager without prior written authorization from RedAwning.
f. In case the party contracting with RedAwning is not directly processing personal data of Guests under its own control (e.g. as may be applicable in case of chains, property management companies etc.), this Clause 2 shall be read to apply to the property manager ultimately processing the personal data of Guests. In such case, either contracting party and/or Property Manager may be considered the (sole) data controller of any Guest data processed in the context of the Agreement.
g. Messaging Tools. RedAwning may from time to time as part of its service to the Guest and Property Manager facilitate the communication between the Guest and Property Manager using tools or solutions provided by RedAwning (“RedAwning Communications Solutions”). RedAwning will process communications sent via the RedAwning Communications Solutions (the “Communications”) in accordance with the RedAwning Privacy Policy available on www.redawning.com. Property Manager hereby irrevocably and unconditionally agrees and consents to the processing of Communications by RedAwning (including any processing, storage, receipt, access, insight and screening of communications by RedAwning) and states that it has duly and diligently informed (and as required by applicable laws, obtained consent from) Property Manager’s employees, agents, representatives, staff members and other individuals of/for/when using the RedAwning Communications Solutions for or on Property Manager’s behalf (including the processing, receipt, insight, storage, screening and access of such communications by RedAwning).

3. Use of RedAwning Services
a. Notwithstanding anything to the contrary in the Agreement, Property Manager agrees to comply and have individuals acting on its behalf, comply with the RedAwning Terms of Use, as made available on www.redawning.com.
b. RedAwning may offer a web-based portal access facility to Property Manager (the “Portal”). Property Manager shall safeguard and keep its assigned user ID and password required for Portal access confidential and secure, and shall not disclose the user ID and password to any person other than those who need to have access to the Portal to fulfill their job responsibilities. Property Manager shall notify RedAwning at greg@redawning.com within 24 hours of any actual or suspected breach of security or confidentiality involving the user ID and password used by Property Manager to access the Portal.
c. Property Manager agrees not to use the RedAwning Communications Solutions to send unsolicited electronic communications to any individual. Property Manager will fully indemnify RedAwning for any claims of third parties or fines resulting from unlawful or unauthorized use of the RedAwning Communications Solutions by Property Manager for its own purposes.

4. Payment Card Security
To the extent Property Manager processes payment card information obtained by Property Manager through the RedAwning Services,Property Manager is required to comply and to have its service providers comply on an ongoing basis with the requirements, compliance criteria and validation processes set forth in the current Payment Card Industry (PCI) Data Security Standard issued by the major credit card companies.

5. Standard Contractual Clauses
The Agreement and these Guidelines are subject to the Standard Contractual Clauses attached hereto as Exhibit 1.

Exhibit 1
Standard Contractual Clauses

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, the entities below (each, a “party”; together, the “parties”) are herein the “data exporter” if a Processor or Controller, as the case may be, and the “data importer” if a (i) sub- Processor (in a Processor/sub-Processor relationship) or (ii) Processor (in a Controller/Processor relationship).

Party

RedAwning.com, Inc. 224 Weller St., Suite C, Petaluma, CA 94952
(p) 888-733-2964
(e) greg.schuler@redawning.com

Party

Property Manager identified PA

THE PARTIES HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

(a) “personal data”, “special categories of data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority” shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b) “the data exporter” means the controller who transfers the personal data;

(c) “the data importer” means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) “the sub-processor” means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) “the applicable data protection law” means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) “technical and organisational security measures” means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(ii) any accidental or unauthorised access, and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6 Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub- processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub- processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.

2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1 to the Standard Contractual Clauses

This Appendix 1 forms part of the Clauses and must be completed and signed by the parties.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data importer

The data importer is: Property Manager is the owner and/or operator of certain vacation rental properties to be promoted through the RedAwning Services.

Data exporter

The data exporter is: RedAwning is short-term vacation rental distribution network service provider.

Data subjects

The personal data transferred concern the following categories of data subjects: Temporary vacation rental guests.

Categories of data

The personal data transferred concern the following categories of data:

Processing operations

The personal data transferred will be subject to the following basic processing activities:

The personal data will be processed by the data importer to perform the services pursuant to the Agreement, including without limitation, collection, recording, organization, structuring, storage, retrieval, use, disclosure by transmission, dissemination, combination, restriction, erasure and destruction of personal data.

Appendix 2 to the Standard Contractual Clauses

This Appendix 2 forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

1. Confidentiality (Art. 32 para. 1 lit. b GDPR).

(a) Access control to premises and facilities (physical access control)