These Kayak Software Corporation "Kayak's Advertisers" Terms and Conditions ("Terms") are entered into by you and Kayak Software Corporation ("Kayak") regarding the Kayak KayakNetwork Program ("Program") as further described in the Kayak Network frequently asked questions (the "FAQs") (collectively, the "Agreement"). You are given the opportunity to participate in the Program conditional upon acceptance of, and agreement to be bound by, these Terms. You represent and warrant that you are authorized to act on behalf of; use trademarks, trademarks, and the like for the benefit of; and bind to this Agreement, any third party for which you generate ads. You represent, warrant and covenant that you have sufficient authority to enter into the Agreement and that your use of Kayak's services is solely for lawful commercial and business purposes.
You hereby agree and acknowledge:
1. Policies. Program use is subject to all applicable Kayak and Partner policies, including without limitation the (Kayak Privacy Policy). Policies may be modified any time. You shall direct only to Kayak communications regarding your ads on Partner Properties.
2. The Program. You are solely responsible for all: (a) Hotel Search Placement and/or ad targeting options (collectively "Targets") and all ad content and ad URLs ("Creative"), whether generated by or for you; and (b) web sites proximately or directly reachable from Creative URLs and related services and products (collectively "Services"). With regard to your account, you shall protect your passwords and take full responsibility for your own, and third party, use of your accounts. Ads may be placed on (y) any content or property provided by Kayak ("Kayak Property"), and unless opted-out by you (z) any other content or property provided by a third party ("Partner") upon which Kayak places ads ("Partner Property"). Kayak and/or Partners may reject or remove any ad or Target for any or no reason. You may independently cancel online any campaign at any time (such cancellation is generally effective within fourteen (14) days). Kayak may cancel immediately any Target, Creative, the Program or these Terms at any time with notice (additional notice is not required to cancel a reactivated account). Sections 1, 2, 5, 6, 7, 8, and 9 will survive any expiration or termination of this Agreement.
3. Application of the Algorithm. You acknowledge and understand that Kayak may permit other users to engage in campaigns simultaneously to yours, and that some of these other campaigns may compete directly with your campaign. You acknowledge and understand that the Program uses a proprietary algorithm (the "Algorithm") to determine which users' Creative shall be used with regard to a particular Target (the "Placement") and/or the order in which these campaigns are displayed. Kayak makes no representations about this Algorithm, and reserves all rights in connection with determination of the value proposition, modifications, and other changes to such Algorithm. Kayak does warrant that (a) you shall never be charged more than the "Maximum Cost per Click" that you selected in connection with a particular campaign; and (b) if your Creative is selected, and your account charged, you will be charged $0.01 more than the next highest bid. You acknowledge and agree that no Creative from your campaign will be displayed for less than $.10/click, or other (higher) amount as agreed to when you commenced your Campaign.
4. Prohibited Uses. You shall not, and shall not authorize or otherwise encourage any party to: (a) generate automated or fraudulent impressions or clicks; or (b) advertise anything illegal or engage in any illegal or fraudulent business practice in any state or country where your ad is displayed. You represent and warrant that (w) all your information is, and will be updated to be, correct and current; (x) you hold and grant Kayak and Partners all rights to copy, distribute and display your ads and Targets ("Use"); (y) the website to which any Creative links will look the same to all users regardless of the end location; and (z) such Use and websites linked from your ads (including services or products therein) will not violate or encourage violation of any applicable laws. You hereby acknowledge that Kayak is not responsible for the content or maintenance of your web site(s), or web sites owned or operated by any third party (including, without limitation, other advertisers) nor is Kayak responsible for order entry, fulfillment, payment processing, cancellations, returns or customer service concerning orders placed on your web site(s) or web sites owned or operated by any third party (including, without limitation, other advertisers). You agree that your Web site does not contain any Kayak-owned or licensed content, except pursuant to a separate signed agreement with Kayak. Violation of these policies may result in immediate termination of this Agreement or your account without notice and may subject you to legal penalties and consequences.
5. Disclaimer and Limitation of Liability. KAYAK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. Kayak disclaims all guarantees regarding the levels or timing of costs per click, click through rates or delivery of any impressions, positioning, clicks or conversions for any ads or Targets. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO KAYAK BY YOU FOR THE AD GIVING RISE TO THE CLAIM. Except for payment, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including but not limited to acts of God, government, terrorism, natural disaster, labor conditions and power failures. You understand and acknowledge that any "Incremental Revenue Estimates" (or the like) provided by Kayak in connection with you Campaign are estimates only, and are based at least in part, on information provided to Kayak by you, and therefore should not be interpreted as guarantees or other warranties of results of particular Campaign(s).
6. Payment. You understand that you will pre-fund your campaigns with an initial deposit of fifty dollars ($50.00) and therefore will be billed for that amount upon your agreement to these terms, giving you your account balance. If your credit card is rejected, or otherwise Kayak reasonably determines that you will not be able to pre-fund your account, Kayak reserves to terminate a Campaign prior to its commencement (i.e., prior to the first Placement.) Kayak will calculate and update your account balance, but shall have the right to commingle your funds with the funds of others, and/or Kayak's general funds. Your account balance shall be charged based on actual clicks and pay all charges in U.S. Dollars, or such other currency specified in writing by Kayak. Charges are exclusive of taxes. You are responsible for paying (y) all taxes and government charges, and (z) reasonable expenses and attorney fees Kayak incurs collecting late amounts (as the result of credit card misuse, or the like), if any. You waive all claims relating to charges unless claimed within thirty (30) days after the later of (a) the last date of the campaign, or the (b) the charge against your credit card (this does not affect your credit card issuer rights). Charges are solely based on Kayak's click measurements. Refunds (if any) are at the discretion of Kayak and only in the form of advertising credit in connection with the Program. You acknowledge and agree that any credit card and related billing and payment information that you provide to Kayak may be shared by Kayak with companies who work on Kayak's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Kayak and servicing your account. Kayak may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Kayak shall not be liable for any use or disclosure of such information by such third parties.
7. Indemnification. You shall indemnify, defend and hold Kayak, its agents, affiliates, and licensors harmless from any third party claim or liability (including without limitation reasonable legal fees) ("Claims") arising out of your Program use, Targets, Creative and Services and breach of the Agreement. You agree to be solely responsible for defending any Claim against or suffered by a third party or Kayak subject to Kayak's right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all Claims to a third party or Kayak provided that you will not agree to any settlement that imposes any obligation or liability on Kayak without Overture's prior express written consent. Partners may assert and enforce this Section 7 as a third party beneficiary.
8. Remedies. If you are dissatisfied with any aspect of a Program(s), your sole and exclusive remedy is to terminate the Agreement and/or the Terms in writing. You and/or Kayak may terminate the Agreement, any Terms, and/or your participation in any Program, at any time, for any reason or for no reason, unless otherwise set forth in any of the Terms. Notwithstanding anything contained in the Agreement to the contrary, Kayak may, in its sole discretion, terminate or suspend your account, and/or discontinue or suspend your participation in all or part of any Program or on any Partner site.
9. Miscellaneous. The Agreement must be construed as if both parties jointly wrote it, governed by Connecticut law except for its conflicts of laws principles and adjudicated in New Haven, Connecticut. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any conflicting or additional terms contained in additional documents (e.g. reference to a purchase order number) or oral discussion are void. You may grant approvals, permissions and consents by email, but any modifications to the Agreement must be made in a writing (not including email) executed by both parties. Any notices to Kayak must be sent to: Kayak Software Corporation, with a copy to the Legal Department, via first class or air mail or overnight courier, and are deemed given upon receipt. Notice to you is acceptable by sending email to your specified email address and is deemed received when sent. A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention, and remaining provisions of the Agreement will remain in full effect. You may not assign any of your rights hereunder and any such attempt is void. Kayak and you and Kayak and Partners are not legal partners or agents, but are independent contractors.
10. Beta Features. Some Program features are identified as "Beta," "Ad Experiment," or otherwise unsupported ("Beta Features"). Beta Features are provided "as is" and at your option and risk. You shall not disclose to any third party any information from, existence of or access to Beta Features. Kayak may modify ads to reasonably comply with any Kayak Property or Partner Property policies.
11. Data Access. During the term of this Agreement, you are authorized to access the Kayak Properties solely to manage your Kayak account(s) or as otherwise authorized by Kayak in writing. You agree that you will not use the Kayak Properties (or the Partner Properties) or any content therein or data obtained therefrom for any other purpose (and the purpose(s) for which you are authorized by your employer, if relevant) and that you will not disseminate any of this information. Your right to access your account with Kayak (including without limitation any login or other access information) is personal to you, non-transferable, and non-assignable, and is subject to any limits established by Kayak. You agree that you will not use any automated means, including without limitation, agents, robots, scripts, or spiders, to access or manage your account with Kayak or to monitor or copy the Kayak Properties or the content contained therein, except those automated means expressly made available by Kayak, if any, or authorized in advance and in writing by Kayak. Without limiting the foregoing, you further agree that you will not take any action that imposes an unreasonable or disproportionately large load on Kayak's infrastructure as determined by Kayak.
12. Information. Kayak owns exclusive right to all information generated in connection with the Program, including information provided by you in connection with Targets and/or the results of the Algorithm.
13. Confidential Information. means any information disclosed to you by Kayak, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that you can establish: (i) was publicly known and made generally available in the public domain prior to the time of disclosure to you by Kayak; (ii) becomes publicly known and made generally available after disclosure to you by Kayak other than through your action or inaction; or (iii) is in your possession, without confidentiality restrictions, prior to the time of disclosure by Kayak as shown by your files and records. You shall not at any time (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information (except to your employees and agents who have a legitimate need to know such information and are bound in writing by confidentiality and non-use restrictions not less protective than those contained herein), or (b) use, reproduce or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you and in accordance with the Agreement. You agree to take all measures to protect the secrecy, and avoid disclosure and unauthorized use, of the Confidential Information. You may disclose Confidential Information if required by law, provided that you give Kayak prompt written notice prior to such disclosure and you provide assistance in obtaining an order protecting the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legally required disclosure. All Confidential Information shall remain Kayak's personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Kayak immediately upon Kayak's request, and also, upon termination of the Agreement. You may not issue any press release or other public statement regarding the Agreement, Kayak, its Affiliates, or partners without the prior written consent of an authorized person at Kayak.
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