THIS AGREEMENT GOVERNS THE PROVISION OF SERVICES TO YOU, THE “CLIENT”.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A STATEMENT OF WORK, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY, IN WHICH CASE THE TERM “CLIENT" SHALL REFER TO THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT.
This Agreement was last updated on February 27, 2017. It is effective between Client and Kayak Creative Services, Inc. as of the date you accept this Agreement ("Effective Date") as set forth above.
“Client Content” means all materials and works owned by Client and in existence as of the Effective Date, or which are created solely by Client, and provided to Kayak for use in the creation of the Final Deliverables hereunder.
“Confidential Information” means any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and Client records, and that is not generally known in the industry of the Client and where the release of such information could reasonably be expected to cause harm to the Client.
“Statement of Work” means a document describing the work and services to be accomplished, the associated fees, and any additional terms required for each individual project between the parties, which references this Agreement, and is executed (electronically or otherwise) by an authorized representative of each party.
“Final Deliverables” means the final portion of Work Product to be delivered by Kayak to Client as set forth in each Statement of Work.
“Kayak Tools” means all strategies, methods, tools, software, worksheets, and know-how created or used by Kayak in the performance of the services hereunder. Kayak Tools include but are not limited to the communication brief, the persona development tool, flow wordpress themes, and related marketing tools.
“Third Party Materials” means any content or materials owned by third parties and incorporated into the Final Deliverables.
“Work Product” means all content, materials, designs, and other work product, including but not limited to graphics, visual elements, photography (moving or still), audio-visual works, sounds, formats, text, modifications to Client Content, and the selection or arrangement of any such materials with Client Content or Third Party Materials, which are created or commissioned in whole or in part by Kayak in the performance of the services under each Statement of Work. Work Product shall not include Client Content, or Third Party Materials.
Subject to the terms of this Agreement, Kayak shall provide Client with the services set forth in a Statement of Work.
Client may request additional services, or changes to the Statement of Work, by written notice to Kayak detailing the additional or changed services requested. Within ten business days, Kayak will propose any modifications to the Statement of Work, and any resulting additional fees, delays, or changes to deliverables or terms. Changes or additions to any Statement of Work may be billed at Kayak’s then-current rates.
The parties may enter additional Statements of Work at any time under this Agreement. All Statements of Work referencing this Agreement are hereby deemed incorporated herein.
Client shall pay all fees set forth in the Statement of Work. Fees will be invoiced to Client on the schedule set forth in the Statement of Work, and any deposits required will be invoiced upon execution of the Statement of Work. All undisputed amounts are due upon Client’s receipt of invoice and shall be payable within five days of Clients receipt of invoice unless otherwise specified in the Statement of Work. Any prepaid services must be used within the applicable time period set forth in the Statement of Work, and no refunds shall be available for unused portions of prepaid services. Fees listed on a time and materials basis are estimates only, and actual hours and materials may vary.
All overdue payments are subject to a late charge equal to 1% per month, compounded monthly (12.68% per annum), or a fixed fee of $50 per week. If payments are not timely received, Kayak may at its sole discretion suspend services under such Statement of Work until payment is received, and/or apply selected charge.
The fees in any Statement of Work do not include sales tax, or other applicable duties as may be required by law. Any sales tax and duties required by law will be charged to the Client.
Client shall reimburse Kayak for Kayak’s reasonable and necessary expenses incurred in connection with providing the services under this Agreement. Reasonable and necessary expenses include but are not limited to deployment expenses, stock image research, hosting fees, SSL certifications and domain registrations. Kayak will use commercially reasonable efforts to notify Client in advance of incurring any such fee.
Kayak will not disclose or use, for any purpose, any Confidential Information which Kayak has obtained, except as required to perform under this Agreement, as authorized by the Client, or as required by law. The obligations of confidentiality will apply during the Term of this Agreement and will survive for a period of two years after termination of this Agreement.
The obligations of this Section 4 shall not apply to Confidential Information which (i) is or becomes publicly available through no fault of Kayak, (ii) is known by Kayak at the time of disclosure, (iii) is disclosed to Kayak by any third party without any obligation of confidentiality to Client, or (iv) is independently developed by Kayak without use of the Confidential Information.
Upon termination of this Agreement, Kayak will destroy or return to the Client any Confidential Information which is the property of the Client.
Ownership of Intellectual Property.
Except as expressly set forth herein, all right, title, and interest in and to the Kayak Tools, Work Product, and Final Deliverables, including all intellectual property rights therein, shall be owned by Kayak, and Client obtains no rights or interest in or to the Kayak Tools, Work Product, and Final Deliverables. Upon delivery of the Final Deliverables, Client shall return to Kayak all Work Product in Client’s possession.
Subject to the terms and payment obligations in this Agreement, Kayak hereby grants, and shall grant, to Client a nontransferable, non sublicenseable, perpetual, right to use, copy, and publicly display, the Final Deliverables for its own internal business purposes.
Client is expressly prohibited from modifying, cropping, distorting, or otherwise manipulating or editing the Final Deliverables, or creating derivative works from the Final Deliverables, except for the Client’s own internal business purposes. Kayak retains the right to reject the use of any alteration of the Final Deliverables which are unlawful, discriminatory, obscene, or otherwise harmful in Kayak’s sole discretion.
Client shall retain all right, title, and interest in and to the Client Content, including any intellectual property therein.
Intellectual property rights in and to the Third Party Materials shall be owned by the respective third parties. Kayak will inform Client of all Third Party Materials to be included in the Final Deliverables. Client shall license or purchase all Third Party Materials to be included in the Final Deliverables at Client’s own expense.
All displays or publications of the Final Deliverables shall contain an accreditation notice in Kayak’s name in the form, size, and location as incorporated by Kayak in the Final Deliverables. Kayak hereby grants, and shall grant, to Client the limited right to display Kayak name and logo solely in the manner provided by Kayak in the Final Deliverables.
Kayak hereby warrants to Client that Kayak will provide the services identified in the Statement of Work in a professional and workmanlike manner and in accordance with reasonable professional standards for such services.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, THE FINAL DELIVERABLES ARE PROVIDED “AS IS” AND KAYAK MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO THE FINAL DELIVERABLES, THIRD PARTY MATERIALS, OR ANY WORK PRODUCT. KAYAK EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE FINAL DELIVERABLES, THIRD PARTY MATERIALS, OR WORK PRODUCT.
In providing the services under this Agreement it is expressly agreed that Kayak is acting as an independent contractor and not as an employee. Kayak and the Client acknowledge that this Agreement does not create a partnership or joint venture between them. Kayak reserves the right to use independent third party contractors to perform services under the Agreement.
Term of Agreement.
The term of this Agreement (the "Term") will begin on the Effective Date and will remain in full force and effect for as long as there remains an active Statement of Work. As used herein, the term "active Statement of Work" means an Statement of Work under which services are still being performed.
Either party may terminate this Agreement, or an Statement of Work, on 30 days’ prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement or that particular Statement of Work, and fails to cure the breach during that 30-day period.
Either party may terminate this Agreement on written notice to the other party if the other party makes an assignment for the benefit of creditors, is liquidated or otherwise dissolved, becomes insolvent, files a petition in bankruptcy, or a receiver, trustee, or custodian is appointed for such other party.
Kayak may terminate this Agreement without cause by providing Client with thirty (30) days written notice. Client may terminate this Agreement without cause upon thirty (30) days’ prior written notice, provided Client has paid all unpaid invoices for work performed up to the date of termination.
In the event of termination of this Agreement or any Statement of Work, Kayak shall submit a final invoice detailing the unpaid fees for the work performed up through the date of termination, and Client shall pay such invoice in accordance with the payment terms set forth in this Agreement. The termination of one Statement of Work shall not affect any other Statement of Work in effect at the time of termination.
Limitation of Liability.
IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF KAYAK, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND AFFILIATES, TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO KAYAK UNDER THE STATEMENT OF WORK GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL KAYAK BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES PROVIDED BY KAYAK, EVEN IF KAYAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Kayak shall indemnify, defend, and hold Client harmless from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging Kayak’s gross negligence or willful misconduct in connection with its performance under this Agreement.
Client shall indemnify, defend, and hold Kayak harmless from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party related to Client’s failure to obtain any intellectual property right, release, or permission with respect to Third Party Materials or Client Content included in the Final Deliverables.
The indemnification obligations above are conditional, to the extent an indemnitor is actually prejudiced by the failure to comply, on the indemnitee (i) promptly notifying the indemnitor in writing of the claim; (ii) giving sole control of the defense and all related settlement negotiations to the indemnitor, provided no settlement shall be agreed to unless the indemnitee is fully released from all liability; and (iii) providing indemnitor with reasonable assistance and information, at indemnitor’s cost, to allow indemnitor to perform its obligations under this section.
Dispute Resolution. In the event a dispute arises out of or in connection with this Agreement, the parties will attempt to resolve the dispute through friendly consultation. If the dispute is not resolved within a reasonable period, then any or all outstanding issues may be submitted to mediation in accordance with applicable statutory rules of mediation. If mediation is unavailable or is not successful in resolving the entire dispute, any outstanding issues will be submitted to final and binding arbitration in the Province of Alberta, and in accordance with the laws of the Province of Alberta. The arbitrator's award will be final, and judgment may be entered upon it by any court having jurisdiction within the Province of Alberta.
Notice. All notices required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties of this Agreement to the address specified in a Statement of Work.
Modification of Agreement. Except as otherwise provided, any amendment or modification of this Agreement or additional obligation assumed by either party in connection with this Agreement will only be binding if evidenced in writing signed by an authorized representative of each party.
Assignment. Neither party may assign or otherwise transfer its obligations under this Agreement without the prior written consent of the other party. This Agreement will enure to the benefit of and be binding on the parties and their respective heirs, executors, administrators and permitted successors and assigns.
Entire Agreement. It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement. This Agreement, and its related Statements of Work, is the entire agreement between the parties and supersedes all prior understandings, whether oral or written, between the parties relating to the subject matter hereof.
Titles/Headings. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement.
Governing Law. This Agreement, and all suits and special proceedings under this Agreement, shall be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the Province of Alberta, without regard to the jurisdiction in which any action or special proceeding may be instituted.
Severability. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
Waiver. The waiver by either party of a breach, default, delay or omission of any of the provisions of this Agreement by the other party will not be construed as a waiver of any subsequent breach of the same or other provisions.
Kayak will provide notice to Client of any changes to this Agreement by posting it online at the location set forth in the Statement of Work or by other reasonable means. Client will review this Agreement periodically for changes. Client’s continued acceptance of services after such notice constitutes Client’s binding acceptance of the amended Agreement. If any such revision is unacceptable to Client, Client’s only remedy is to terminate this Agreement in accordance with section 8.4.