KAYAK FOR BUSINESS AGREEMENT
IMPORTANT: BY PLACING AN ORDER, COMPLETING THE REGISTRATION PROCESS, CLICKING TO ACCEPT THIS AGREEMENT OR ACCESSING, DOWNLOADING OR USING ANY ELEMENT OF KAYAK’S SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS, DOWNLOAD OR USE KAYAK’S SERVICES.
This Agreement is made and entered into between KAYAK Software Corporation (“KAYAK”) and you (“Subscriber”), and sets forth the terms pursuant to which Subscriber will be permitted to use KAYAK’s Services (this “Agreement”). The “Effective Date” of this Agreement is the earliest date on which Subscriber first places an Order (as defined below), clicks to accepts this Agreement or otherwise registers for, accesses or uses KAYAK’s Services.
This Agreement permits Subscriber to order KAYAK Services through one or more executed Order Forms referencing this Agreement or online through a registration page or order flow (in each case, an “Order Form”). The Order Form will identify the company for which KAYAK’s Services is permitted to be used (“Subscriber”). In addition to the terms below, each Order is deemed part of this Agreement to the extent it covers KAYAK’s Services. Each party expressly agrees that this Agreement is legally binding upon it. Subscriber understands and agrees that KAYAK may modify this Agreement from time to time as permitted in Section 13.8 (Changes to Agreement) below. If you are an individual accepting on behalf of Subscriber, you represent and warrant that (i) you are of legal age to form a binding contract and have full legal authority to bind Subscriber to this Agreement, (ii) you have read and understand this Agreement, and (iii) you agree, on behalf of the Subscriber, to this Agreement.
The parties agree as follows:
1.1 “Affiliate” means any entity that is controlled by the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “KAYAK Service” means the KAYAK product and services described in Section 2.1.
1.3 “KAYAK Technology” means the property described in Section 2.2.
1.4 “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.5 “Subscriber Data” means user data submitted by Subscriber to the KAYAK Service.
1.6 “User” means an individual who is authorized by Subscriber to use the KAYAK Services, for whom Subscriber has purchased a subscription (or in the case of any Services provided by KAYAK without charge, for whom the KAYAK Service has been provisioned), and to whom Subscriber (or, when applicable, KAYAK at Subscriber’s request) has supplied a user identification and password (for Services utilizing authentication).
2. KAYAK SERVICES
2.1 Service description. KAYAK for Business (referred to herein as “KAYAK Services”)
2.2 Ownership. KAYAK or its licensor is, and will remain, the owner of, KAYAK Services and any modifications, improvements or derivative works of the foregoing (including as may incorporate Feedback, as defined below), and all patents, copyrights, trademarks, service marks, trade secrets and other proprietary or intellectual property rights, whether registered, unregistered, known or unknown, associated with any of the foregoing (collectively, “KAYAK Technology”). Subscriber will take such actions as KAYAK may reasonably request to confirm ownership of the KAYAK Technology by KAYAK or its licensor. Except as expressly provided in this Agreement, no right, title or interest therein or thereto will be transferred to Subscriber hereunder, irrespective of any use of the words “purchase”, “sale” or any similar terms. Subscriber, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information to KAYAK (“Feedback”). KAYAK may in connection with any of its products or services freely use, copy, disclose, license, communicate to the public, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
2.3 Data. KAYAK will maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Subscriber Data (other than by Subscriber and Users). To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by KAYAK the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Subscriber and its applicable Affiliates are each the data exporter, and Subscriber's execution of this Agreement, shall be treated as its execution of the Standard Contractual Clauses and appendices
3. USE OF THE KAYAK SERVICES
3.1 Use of the KAYAK Services. Subject to the terms and conditions of this Agreement, KAYAK grants to Subscriber and Subscriber’s Affiliates that have been approved by KAYAK a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.4) right during the term of this Agreement to use the KAYAK Services solely in connection with Subscriber’s internal business operations. Subscriber agrees that its subscription to the KAYAK Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by KAYAK with respect to future functionality or features.
3.2 Technical Support Services. KAYAK will use reasonable efforts to provide Subscriber with technical support services relating to the KAYAK Services via the online feedback form. KAYAK is not a travel agent and cannot provide support in respect of any booked travel.
3.4 Registration and Login Information. All information Subscriber provides to KAYAK to establish or maintain its KAYAK Service account must be true, accurate, current and complete. Such information may include physical address, email address, phone number and other information as KAYAK may reasonably request. Subscriber will maintain the confidentiality of its login and password information for KAYAK Services and will be responsible for all actions taken through Subscriber’s account for KAYAK Services. Subscriber agrees to immediately notify KAYAK of any unauthorized use of its account or any other breach of security related to its use of KAYAK Services. Subscriber will limit use of KAYAK Services to its authorized employees and contractors and will be responsible for their compliance with this Agreement.
4. TERM AND TERMINATION
4.1 Term. The term of this Agreement commences on the Effective Date and will continue until effective date of termination (unless otherwise is specified in the applicable Order Form). Either party may terminate the Agreement, at any time and for any reason, by providing the other party thirty (30) days prior written notice.
4.2 Termination for Material Breach. Either party may terminate the Agreement immediately upon the other party’s material breach of the agreement. If Subscriber fails to timely pay any fees, KAYAK may, without limitation to any of its other rights or remedies, suspend performance of the KAYAK Services until it receives all amounts due.
4.3 Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Subscriber will pay to KAYAK any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Subscriber will provide KAYAK with a written certification signed by an authorized Subscriber representative certifying that all use of the KAYAK Services by Subscriber has been discontinued.
4.4 Return of Subscriber Data. Subscriber has thirty (30) days from the expiration or termination of this Agreement to download all Subscriber Data stored within the KAYAK Service at the time of expiration or termination. Thirty (30) days after termination, KAYAK shall have no further obligation to Subscriber with respect to the storage of Subscriber Data and may, at its option, permanently delete the Subscriber Data.
5.1 Any confidential or proprietary information of either party, whether of a technical, business or other nature, including, but not limited to trade secrets, know-how, technology and information relating to customers, business plans, promotional and marketing activities, finances and other business affairs (collectively, “Confidential Information”) disclosed to the recipient party by the disclosing party in connection with this Agreement will be treated by the recipient party as confidential and proprietary, provided that it is marked at time of disclosure as confidential or proprietary or is of such a nature that a reasonable business person would consider it confidential or proprietary. The terms and conditions of this Agreement (including, without limitation, pricing), the KAYAK Technology, and any performance information regarding KAYAK Services are all deemed Confidential Information of KAYAK. Subscriber Data are all deemed Confidential Information of Subscriber.
5.2 Unless specifically authorized by the disclosing party or in order to exercise its rights under this Agreement, the recipient party will: (a) not disclose such Confidential Information to any third party (other than as set forth in this Section, below); and (b) otherwise use reasonable precautions to protect such Confidential Information from unauthorized use and disclosure, including, without limitation, all precautions it uses to protect its own Confidential Information of a similar nature. Any employee, contractor, agent or advisor, given access to any Confidential Information must have a legitimate “need to know” in order to perform a party’s obligations or exercise its rights under this Agreement and the recipient party shall remain responsible for each such person’s compliance with the terms of this Agreement.
5.3 Notwithstanding anything to the contrary in this Agreement, KAYAK may maintain, use and publish general, anonymous, non-personally identifiable, aggregated statistical data and information based on Subscriber Data and Subscriber’s use of the KAYAK Service for the purposes of benchmarking, making improvements to KAYAK’s products and services, and KAYAK marketing and promotional materials. KAYAK will not disclose any such statistical data or information in such a way as to identify Subscriber, or any of Subscriber’s Users, and will not use any such anonymized, aggregated statistical data and information for the benefit of any third party other than for the limited, specific purposes set forth above.
5.4 The obligations set forth in this paragraph will not apply to any information that: (i) was already known to the recipient party, other than under an obligation of confidentiality, at the time of disclosure by the disclosing party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the recipient party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the recipient party in breach of this Agreement; (iv) was disclosed to the recipient party, other than under an obligation of confidentiality, by a third party who had no obligation to another party not to disclose such information to others; or (v) was developed independently by the recipient party without any use of Confidential Information of the disclosing party. Notwithstanding the foregoing, the recipient party may make disclosures to the extent required by laws, rule, stock exchange rule, subpoena, governmental proceeding or court order.
6. WARRANTIES AND DISCLAIMER
6.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
6.3 Disclaimer. KAYAK SERVICES OR KAYAK TECHNOLOGY OR ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”, KAYAK MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO KAYAK SERVICES OR KAYAK TECHNOLOGY SAVE AS EXPRESSLY SET OUT IN THIS AGREEMENT KAYAK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS AND TERMS WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO KAYAK SERVICES, KAYAK TECHNOLOGY OR ANY SERVICES PROVIDED HEREUNDER BY KAYAK OR ANY THIRD PARTY VENDOR SELECTED BY KAYAK, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY, CONDITION OR TERM OF SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY, CONDITION OR TERM ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. KAYAK DOES NOT WARRANT THAT SUBSCRIBER’S USE OF KAYAK SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR THAT KAYAK WILL PRESERVE OR MAINTAIN THE SUBSCRIBER DATA WITHOUT LOSS. KAYAK DOES NOT WARRANT THAT any information PROVIDED THROUGH the KAYAK SERVICEs IS ACCURATE OR COMPLETE OR THAT any information PROVIDED THROUGH the KAYAK SERVICES WILL ALWAYS BE AVAILABLE. KAYAK EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE KAYAK SERVICES.
7.1 Subscriber. Subscriber will indemnify, defend (at KAYAK’s option and without limiting Subscriber’s other obligations hereunder) and hold harmless KAYAK, its affiliates and their respective employees, directors, officers, representatives and agents (“KAYAK Indemnified Parties”) from and against any claim, action or proceeding brought or threatened by a third party arising from Subscriber’s or Subscriber’s Users’: (a) breach of any provision, covenant, warranty or representation in this Agreement; (b) willful acts or omissions, negligence, or other similar wrongdoing; or (c) failure to comply with any laws. Subscriber will pay all costs (including, but not limited to, court costs and reasonable legal fees and costs), damages, losses, liabilities, expenses, penalties, judgments and settlements incurred by the KAYAK Indemnified Parties, or which the KAYAK Indemnified Parties otherwise become subject to, in connection with or arising from any such claim. Subscriber may not settle any such claim without KAYAK’s prior written consent. KAYAK may assume the defense of any such claim at its option and Subscriber’s expense, but this shall not limit Subscriber’s other obligations under this Section 8.1.
8. LIMITATIONS OF LIABILITY
8.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, KAYAK WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF KAYAK IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
8.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL KAYAK’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO KAYAK UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE MONTHS PRECEDING THE CLAIM OR USD 1,000, WHICHEVER IS GREATER.
8.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY KAYAK TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9.1 Relationship. KAYAK will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
9.2 Public Reference. Subscriber consents that KAYAK may refer to Subscriber name and marks on KAYAK's website and in public marketing materials. Subscriber agrees to participate in one or more of the following: a case study, a press quote, a customer testimonial, and joint participation in industry events or webinars.
9.3 Changes to Agreement. Subject to the specific terms for fee modifications in Section 4.1 (Fees and Payment Terms) above, KAYAK may modify this Agreement from time to time and will provide reasonable notice of such modifications through a KAYAK website, email or other means as determined by KAYAK. As specified by KAYAK, some modifications may become effective upon the start of the renewal Term. Alternatively, KAYAK may specify that a modification will become effective, following a reasonable notice period, during Subscriber’s then-current Term; in this case, if Subscriber does not agree to the modifications, Subscriber’s exclusive remedy will be to provide KAYAK with notice of termination of this Agreement (which notice must be given prior to the effective date of the modification specified by KAYAK) and to receive a refund from KAYAK of any unused recurring fees prepaid by Subscriber for the terminated period of the then-current Term. Client may be required to click to accept the modified terms in order to continue using KAYAK Services, and in any event continued use of KAYAK Services after the effective date of the modification will constitute Subscriber’s acceptance of the modified terms.
9.4 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
9.5 Subcontractors. KAYAK may utilize a subcontractor or other third party to perform its duties under this Agreement so long as KAYAK remains responsible for all of its obligations under this Agreement.
9.6 Notices. Except where another notice process is permitted herein (including in Section 10.3 (Changes to Agreement)), all notices required or permitted to be given under this Agreement must be sent to Subscriber at any one of Subscriber’s addresses, facsimile numbers, or email addresses that have been provided to KAYAK and to KAYAK at 7 Market Street, Stamford, CT 06902, USA, Email: email@example.com, Attention: General Counsel, and will be deemed effectively given: (a) upon delivery when personally delivered against receipt therefor; (b) upon delivery when sent by certified mail, postage prepaid, and return receipt requested; (c) upon transmission when transmitted by electronic transmission (subject to confirmation of receipt); or (d) upon delivery when sent by a nationally recognized overnight service with delivery confirmation.)
9.7 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance
9.8 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Connecticut, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Connecticut, U.S.A., in connection with any action arising out of or in connection with this Agreement.
9.9 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
9.10 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the KAYAK Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the KAYAK Services will immediately terminate.
9.11 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement.
9.12 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the KAYAK Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the KAYAK Services that KAYAK may provide. No employee, agent, or other representative of KAYAK has any authority to bind KAYAK with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.