VENDOR TERMS AND CONDITIONS AGREEMENT

Effective date 10/09/2021

These Vendor Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the Kayak305 Vendor Agreement between Kayak305 and Vendor (collectively, the “Agreement”). Kayak305, subject to the provisions of this paragraph, may amend the Terms and Conditions in its sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by Kayak305 from time to time) will be available: (i) in Kayak305’s Vendor Center, and/or (ii) as part of the Kayak305 Vendor Newsletter. Vendor agrees that either or both notification methods constitute adequate notice to inform Vendor of any amendments to the Agreement and Vendor further agrees to be bound by any such amendments to the Agreement upon such notification.

Definitions

“VENDOR OFFERING” means the Service or Goods to be provided by the Vendor, stated on the Website Kayak305.com as presented by Kayak305. Values determined by Vendor.

“INVETORY PLEDGE” means the maximum number of Sales and Reservations of any Service or Goods Kayak305 is authorized to sale on behalf of the Vendor daily for each day, and for each time slot during the day in relation to Services.

“AMOUNT PAID” means the Price of the Service or Goods sold, and the amount a purchaser pays for each Service or Goods.

“VALUE ADDED” means Additional Value offered to the customer, i.e., 1extra hour rental extension, or any other value goods or services approved by the Vendor (NOT A PRICE DISCOUNT).

“REMITTANCE AMOUNT” means the amount Kayak305 shall remit to Vendor for each Product Sold, subject to the payment terms.

“FINE PRINT” means the conditions and restrictions concerning each Service/Product sold and the Vendor Offering stated on the Website and Service/Product Description.

Service or Goods Program

1. Kayak305 is authorized to promote and sell Service or Goods on Vendor’s behalf subject to the terms of this Agreement and the “Terms of Sale” of the Website. The Service or Goods will evidence the Vendor Offering and will be sent to the purchaser electronically once payment is received. The purchaser will then redeem the Service or Goods with the Vendor by presenting the Service or Goods in paper or electronic form, AND PROOF OF BOOKING ON THE KAYAK305 BOOKING PLATFORM.  Vendor is the issuer of the Service or Goods and seller of the Vendor Offering. If there is a conflict between this Agreement and the Terms of Sale, the Agreement controls.

2. Kayak305 is authorized to promote and sell Service or Goods on Vendor’s behalf through any platform, including its feature deal-of-the-day, affiliates, business partner network, marketplace, or referral network. The Service or Goods may be offered to all or part of Kayak305’s subscriber base or its affiliate subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. The features may be offered through a variety of distribution channels, including, the Internet, the Website, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by Kayak305, its affiliates or business partners. In addition, in connection with Kayak305’s promotion of a Vendor Offering.

3. For appointment-based Vendor Offerings, Kayak305 may require that Vendor provide Kayak305 with a calendar of available appointment times and allow Kayak305 purchasers to schedule appointments with the Vendor through Kayak305 and any third-party service Kayak305 may use. Kayak305 may audit Vendor response times using various methods, including but not limited to, auto-dialers, call forwarding and pre-recorded calls. If Kayak305, in its sole discretion, determines Vendor response times or the quality of service provided to purchasers is unsatisfactory, Kayak305 may terminate the Agreement and return the Amount Paid to purchasers for unredeemed Service or Goods.

4. Any Vendor who provides a Vendor Offering that includes Kayak Guides, Kayak/SUP Instructor Certification to the general public shall: (i) conduct social media searches for all its employees, agents and/or independent contractors performing service to ensure that they maintain a good reputation; and (ii) confirm that its employees, agents and/or independent contractors providing services have the required licenses and/or certifications, as well as meet other applicable state law requirements, for performing the services. Further, Vendor shall certify to Kayak305 annually that it follows (i) and (ii) above. (iii) Any Vendor offering Kayak Guides, Kayak/SUP Instructor Certification to the general public should have staff trained in CPR and experienced in kayak rescue during the lessons/tours.

5. If Vendor performs background checks on its employees, agents and/or independent contractors performing services, Vendor shall provide the results of such background checks to Kayak305 upon request. Vendor shall obtain the necessary consent to share with Kayak305 the results requested.

6. Vendor shall promptly notify Kayak305 any time it receives a complaint related to potentially criminal conduct, including allegations of sexual assault, allegedly engaged in by any of its employees, agents or independent contractors, regardless of whether a Kayak305 customer makes the complaint.

7. Kayak305 is authorized to promote and sell up to the Maximum Number of Service or Goods in multiple markets and on dates in its discretion. If Vendor elects to offer recurring month-to-month features, then Kayak305 will promote and sell up to the Maximum Number of Service or Goods for the initial feature, then promote and sell up to the Monthly Maximum Number of Service or Goods for subsequent features. Vendor shall specify the Maximum Number of Service or Goods and, if applicable, specify the Monthly Maximum Number of Service or Goods, and may increase either number in its discretion.

8. Kayak305 reserves the continuing right to reject, revise, or discontinue any Vendor Offering, at any time and for any reason in Kayak305’s sole discretion, and to terminate the Vendor Offering and to remove all references to the Vendor Offering and Service or Goods from the Website; and redirect or delete any URL used in connection with the Vendor Offering.

9. WEATHER: Vendor shall honor the Service or Goods for the Vendor Offering on the scheduled time and date, unless an unpredictable weather event prevents service/product delivery on the specific time and date.  In the event of an unpredictable weather event preventing the Service/tour/goods from being delivered to the purchaser, then the purchaser shall retain the option to reschedule for another available time and/or be refunded through Kayak305.  In the event weather cuts short the service/rental and purchaser was advised by the Vendor of such incoming weather, then no refund is necessary, and is up to the vendor to extend a “rain check” or such the purchaser of any remaining time value. through the Promotional Value Expiration Date.

10. If the goods and services constituting the Vendor Offering and stated on the Service or Goods are no longer available, the Vendor must always allow the purchaser to redeem the Service or Goods toward any goods or services then offered by the Vendor equivalent to at least the Amount Paid.

11. Partial redemptions: If applicable, and if a purchaser redeems a Service or Goods for less than the Amount Paid, the Vendor is responsible for handling any unredeemed value as required by applicable law and according to the Vendor’s discretion.

12. Vendor agrees that in providing the Vendor Offering, Vendor will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Service or Goods, including the Fine Print. Unless disclosed in the Fine Print, Vendor further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-Kayak305 customers.

13. Vendor agrees that so long as an appointment or reservation is made to redeem a Service or Goods, the Service or Goods will be honored for the Full Offer Value without restriction.  

14. Vendor is responsible for all customer service in connection with the Vendor Offering and for supplying all goods and services stated in the Vendor Offering. Vendor is also responsible for any customer loyalty programs associated with the Vendor Offering.

15. If applicable, Vendor will hold the Vendor Offering for pick-up by each purchaser at the Redemption Site. The “Redemption Site” is the complete and accurate address provided by Vendor to Kayak305 where purchasers can redeem the Service or Goods to pick-up the Vendor Offering. Vendor also agrees to provide Kayak305 with the hours and dates of operation, complete with any exceptions, and a valid phone number for the Redemption Site. If any of the information related to a Redemption Site changes, Vendor agrees to notify Kayak305 immediately of such change.

16. Vendor agrees to accept returns of the Vendor Offering in compliance with applicable laws and the Fine Print, but in any event: (i) will accept returns of a defective Vendor Offering or nonconforming items in or a part of any Vendor Offering at all times and pay (or reimburse a purchaser for) any and all costs associated with the return of such Vendor Offering; and (ii) will not impose a more restrictive return policy on purchasers than Vendor’s regular return policy as applied to Vendor’s purchaser in the ordinary course of Vendor’s business.

Payment

1. Amounts retained by Kayak305 from the proceeds of the Vendor Offering are compensation to Kayak305 for marketing, promoting, and advertising the Vendor Offering and distributing the Service or Goods on behalf of Vendor. Vendor shall retain the Remittance Amount in trust for the benefit of purchasers holding unredeemed Service or Goods until Vendor delivers the Vendor Offering, refunds the holder of any unredeemed Goods or Services, as allowed by the FINE PRINT or escheats the amount required to a taxing authority, if applicable. The funds held in trust shall be returned to Kayak305 upon demand for refunds to purchasers. Kayak305 is authorized to review Vendor’s credit history, which may include a soft credit check.

2. Kayak305 is authorized to initiate ACH credit transaction entries to Vendor’s depository account at the depository financial institution named in this Agreement or as otherwise provided to Kayak305 by Vendor in writing (“Vendor Bank Account”). Only in the event of an error, Kayak305 is authorized to initiate debit entry adjustments to the Vendor Bank Account to correct any error. Vendor hereby acknowledges that Kayak305’s origination of all ACH transactions to Vendor Bank Account must comply with provisions of U.S. law. ACH payments take up to five (5) business days to become available in the Vendor Bank Account after processing.

3. Vendor will not attempt to bill or collect reimbursement from any third-party payor, including but not limited to any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local governmental program or entity (“Third-Party Payor”), for any of Vendor’s services. Vendor will accept the amounts received from Kayak305 as payment in full for all services provided by Vendor delivered pursuant to the Vendor Offering. Vendor is solely responsible for complying with any contractual requirements imposed by its contracts with Third-Party Payors, including but not limited to requirements related to offering discounted services.

4. Tax Levy. In the event Kayak305 receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Vendor, Kayak305 may, in accordance with applicable law, deduct any such amounts from payments due to Vendor.

5. Taxes Generally. It is Vendor’s responsibility to determine what, if any, taxes apply to the payments Vendor makes or receives, and it is Vendor’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. Kayak305 is not responsible for determining whether taxes apply to Vendor’s transaction with either purchasers or Kayak305, or for collecting, reporting or remitting any taxes arising from any transaction with or by Vendor and purchaser. Vendor may be asked to provide Kayak305 with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Vendor’s name for the value of payments made. Notwithstanding anything else in this Agreement, Vendor shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Vendor is required to be so registered in connection with the Vendor Offering and pursuant to the terms and redemption of the Service or Goods, and shall be responsible for paying all sales, use or any other taxes related to the Vendor Offering or the goods and services.

6. Transaction Taxes. Vendor bears sole financial responsibility for all sales, use, excise, general, GST, or other similar taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement between Kayak305 and Vendor (“Transaction Taxes”), if any. Kayak305 shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to Kayak305 pursuant this Agreement. Transaction Taxes are calculated using the Vendor’s billing address and will be included on invoices. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current law.

7. Withholding Taxes. Kayak305 may be required by tax authorities to withhold taxes on behalf of Vendor. Kayak305 reserves the right to deduct any such taxes from amounts due to Vendor and to remit them to the appropriate tax authority. Kayak305 may also be required to report the withholding tax payments to the tax authorities. Kayak305 shall provide evidence of payment of withholding taxes to Vendor no later than 60 days after payment of the withholding taxes.

8. Notwithstanding anything to the contrary, Kayak305 will have no obligation to advance amounts that have been paid to Kayak305 by a purchaser until Vendor has complied with Vendor’s obligations under this Agreement. If Kayak305 reasonably believes that Vendor has breached any provision of this Agreement, Kayak305 may offset, delay, withhold, or suspend future payments to Vendor, in Kayak305’s sole discretion. In addition, if Vendor is unwilling to, or in Kayak305’s reasonable discretion appears unable to, perform its obligations under this Agreement, Kayak305 is authorized to offset, delay, withhold, or suspend future payments to Vendor in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Vendor for any refunds and/or other amounts payable by Vendor under this Agreement.

Customer Data Restrictions

1. “Customer Data” means all identifiable information about purchasers generated or collected by Kayak305 or Vendor, including, but not limited to, purchasers’ name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.

2. Vendor shall use Customer Data only to fulfill its redemption obligations in connection with the Vendor Offering as authorized by this Agreement. Vendor expressly agrees that any Customer Data shall be used only for this purpose (including, but not limited to, the redemption of Service or Goods and provision of goods and services to purchasers), and not to enhance a file or list owned by Vendor, or any third party. Vendor represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Vendor engages any third party to facilitate its redemption obligations hereunder, Vendor shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Vendor or a third party engaged by Vendor to facilitate its redemption obligations hereunder, Vendor shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.

3. As long as Vendor uses Customer Data in compliance with applicable law and Vendor’s posted privacy policy, restrictions stated in this Agreement on Vendor’s use of Customer Data do not apply to: (i) data from any purchaser who is already a customer of Vendor before the Effective Date, if such data was provided to Vendor by such purchaser independent of this Agreement or any transaction hereunder; or (ii) data supplied by a purchaser directly to Vendor who becomes a customer of Vendor in connection with such purchaser explicitly opting in to receive communications from Vendor.

4. Vendor shall immediately notify Kayak305 if Vendor becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of Kayak305 and shall cooperate with Kayak305 in the investigation of such breach and the mitigation of any damages. Vendor will bear all associated expenses incurred by Kayak305 to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Vendor’s reasonable possession or control. Upon termination or expiration of this Agreement, Vendor shall, as directed by Kayak305, destroy or return to Kayak305 all the Customer Data in Vendor’s or any agent of Vendor’s possession.

Promotional Programs

To incentivize Service or Goods sales, Vendor authorizes Kayak305, at any time and in Kayak305’s sole discretion, to increase or decrease the Amount Paid for the Vendor Offering (any such effort, “Promotional Program(s)”). For each Service or Goods sold as part of a Promotional Program, the Net Remittance Amount will NOT be changed.

1. Promotional Codes – A “Promotional Code” is a code that purchasers may use, in Kayak305’s sole discretion, to receive a discount on the Amount Paid for a Vendor Offering.

2. Price Optimization – “Price Optimization” is any change (excluding Promotional Codes) to the Amount Paid for a Vendor Offering.

Term and Termination

This Agreement will continue in effect until terminated by either party in accordance with this Section (“Term”). Kayak305 is authorized to terminate this Agreement, at any time for any reason, upon written notice to Vendor. Vendor is authorized to terminate this Agreement upon seven (7) business days prior written notice to Kayak305. Termination of this Agreement will not in any way affect Vendor’s obligation to redeem any Service or Goods according to the terms of this Agreement, including the obligation to honor the Service or Goods Already paid for and scheduled. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.

Compliance with Gift Card, Gift Certificate and Abandoned Property Laws

Vendor agrees to comply with the Service or Goods terms and conditions as stated on the Website, including but not limited to the “Terms of Use” of the Website, and to ensure that the Service or Goods comply with all laws that govern Service or Goods, gift cards, coupons, and gift certificates, including but not limited to the United States Credit CARD Act of 2009 (if applicable) and any laws governing the imposition of expiration dates, service charges or dormancy fees and all Fine Print related to the Vendor Offering. Vendor is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws. Upon written request from Vendor, but only when required, Kayak305 will provide Vendor with information in Kayak305’s possession that the Vendor needs to comply with its obligations under this Agreement. Vendor agrees that, regardless of the payment terms, Vendor, and not Kayak305, maintains any obligation for unredeemed Service or Goods under applicable escheat or abandoned or unclaimed property laws.

Marketing

Kayak305 and its business partners may communicate with Vendor about products, promotions, and other services that may be of interest to Vendor. This may include email or other communications. Kayak305 may also solicit Vendor’s opinion for market research purposes.

Intellectual Property Rights

1. Vendor grants to Kayak305 a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Vendor’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Vendor (collectively, “Vendor IP”); and (b) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Vendor (collectively, “Third Party IP”), in each case in connection with the promotion, sale/resale (as may be applicable) or distribution of the Vendor Offering in all media or formats now known or hereinafter developed (“License”). Vendor grants Kayak305 Authorization to use Vendor’s Location address for promotional sales including the use of a kayak305 branded store to promote said location. Any use of the Vendor IP or Third-Party IP as contemplated in this Agreement is within Kayak305’s sole discretion.

2. Vendor acknowledges and agrees that, as between the parties, Kayak305 owns all interest in and to the Website, Customer Data, Kayak305 trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by Kayak305 or at Kayak305’s direction, or assigned to Kayak305, and any materials, software, technology or tools used or provided by Kayak305 to promote, sell/resell (as may be applicable) or distribute the Vendor Offering and conduct its business in connection therewith (collectively “Kayak305 IP”). Vendor shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Kayak305 IP or any portion thereof, or use such Kayak305 IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that Kayak305 grants Vendor a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of Kayak305’s mobile Vendor software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Vendor shall keep the Kayak305 IP confidential and shall not prepare any derivative work based on the Kayak305 IP or translate, reverse engineer, decompile or disassemble the Kayak305 IP. Vendor shall not take any action to challenge or object to the validity of Kayak305’s rights in the Kayak305 IP or Kayak305’s ownership or registration thereof. Except as specifically provided in this Agreement, Vendor and any third-party assisting Vendor with its obligations in this Agreement, are not authorized to use Kayak305 IP in any medium without prior written approval from an authorized representative of Kayak305. Vendor shall not include any trade name, trademark, service mark, domain name, social media identifier, of Kayak305 or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Vendor shall not use or display any Kayak305 IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Vendor or a third party and Kayak305. All rights to the Kayak305 IP not expressly granted in this Agreement are reserved by Kayak305.

3. If Vendor provides Kayak305 or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Kayak305 product or service or otherwise in connection with this Agreement, any Kayak305 IP, or Vendor’s participation in the Vendor Offering or Service or Goods, (collectively, “Feedback”), Vendor irrevocably assigns to Kayak305 all right, title, and interest in and to Feedback. In the event your assignment to Kayak305 is invalid for any reason, you hereby irrevocably grant Kayak305 and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Vendor warrants that: (A) Feedback is Vendor’s original work, or Vendor obtained Feedback in a lawful manner; and (B) Kayak305 and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Vendor agrees to provide Kayak305 such assistance as Kayak305 might require documenting, perfect, or maintain Kayak305’s rights in and to Feedback.

Representations and Warranties

Vendor represents and warrants that: (a) Vendor has the right, power and authority to enter into this Agreement; (b) Vendor, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Vendor’s goods and services will be provided; (c) the Service or Goods, upon being delivered by Kayak305, will be available immediately for redemption and Vendor will have sufficient Service or Goods available for redemption (i.e., a number of Service or Goods sufficient to fulfill its redemption obligations in connection with the applicable Maximum Number of Service or Goods); (d) the terms and conditions of the Service or Goods offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing Service or Goods, gift cards, coupons, and gift certificates; (e) the Vendor’s redemption of the Service or Goods will result in the bona fide provision of Service or Goods by Vendor to the purchaser; (f) Vendor owns all interest in and to the Vendor IP and has licensing rights in (with the right to sublicense to Kayak305) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Vendor IP and the Third Party IP, the Vendor Offering, Kayak305’s use and promotion thereof, and the results of such Vendor Offerings, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (h) the Vendor IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (i) the Service or Goods and any advertising or promotion of Vendor’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Vendor and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Vendor Offering to provide the goods or services described in this Agreement; (k) Vendor’s business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Vendor is the authorized entity to receive the funds forwarded by Kayak305; (l) Vendor is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Vendor is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Service or Goods in connection with this Agreement and (m) the Vendor Offering is: (i) free from defects in workmanship, materials and design, (ii) Vendorable and suitable for the purposes, if any, stated in the Agreement, and (iii) genuine, bona fide products, as described herein and does not violate the rights of any third party.

Indemnification

To the extent allowed under applicable law, Vendor agrees to defend, indemnify and hold Kayak305, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys’ fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Vendor of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Vendor arising from the sale and redemption of a Service or Goods; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Service or Goods or unredeemed cash values of Service or Goods or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of any law or regulation by Vendor or governing Vendor’s Service or Goods; (e) any claim arising out of Vendor’s violation of law or regulation governing the use, sale, and distribution of alcohol; (f) any claim by a purchaser or anyone else arising out of or relating to the goods and services provided by Vendor and/or pick up of the goods and services at the Redemption Site, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; (g) any claim by a purchaser for the Amount Paid; (h) any claim arising out of Vendor’s misuse of Customer Data, or any violation of an applicable data privacy or security law; and (i) any claim arising out of Vendor’s negligence, fraud or willful misconduct. Kayak305 maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between Kayak305 and Vendor. Vendor’s duty to defend and indemnify Kayak305 includes the duty to pay Kayak305’s reasonable attorneys’ fees and costs, including any expert fees.

Confidentiality

The terms for the Vendor Offering described in this Agreement are confidential, and Vendor agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if Vendor has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, Kayak305 is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).

Limitation of Liability

EXCEPT FOR VENDOR’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. KAYAK305’S SOLE AND COMPLETE LIABILITY TO VENDOR FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY SERVICE OR GOODS IS LIMITED TO THE AMOUNT OF FEES RETAINED BY KAYAK305 HEREUNDER FOR THE PRECEDING SIX (6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF A VENDOR IN CONNECTION WITH ANY PAYMENT MADE BY KAYAK305, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A VENDOR WAS UNDERPAID, MUST BE MADE IN WRITING TO KAYAK305 WITHIN NINETY (90) DAYS FROM THE DATE KAYAK305 REMITS THE PAYMENT AT ISSUE. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY VENDOR.

Dispute Resolution

All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 14 Dispute Resolution.

1. Binding Arbitration

EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN VENDOR AND KAYAK305 ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 14 TO ARBITRATE, VENDOR AND KAYAK305 ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 14). The provisions of this Section 14 shall constitute Vendor’s and Kayak305’s written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at https://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.

To begin an arbitration proceeding, Vendor or Kayak305 must comply with the limitations provision set forth in Section 13 and submit the Dispute by making a demand for arbitration as detailed at https://www.adr.org. If Vendor demands arbitration, it shall simultaneously send a copy of the completed demand to the following address: Kayak305, LLC.  18117 Biscayne Boulevard, #1240, Aventura, FL 33160. If Kayak305 demands arbitration, it shall simultaneously send a copy of the completed demand to the Vendor’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Kayak305 will reimburse those fees for Disputes totaling less than $3,000 if Vendor is the prevailing party in such arbitration. Kayak305 will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Vendor Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Vendor requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Miami, Florida, unless the arbitrator determines, or we agree that the matter should proceed in the county of Vendor’s principal place of business.

2. Class Action Waiver

WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.

3. Choice of Law/No Jury Trial

If for any reason a Dispute proceeds in court: (i) Vendor and Kayak305 agree that any such Dispute may only be instituted in a state or federal court in Miami-Dade County, Florida; (ii) Vendor and Kayak305 irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Vendor and Kayak305 agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Florida, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) VENDOR AND KAYAK305 AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.

4. Injunctive Relief/Attorneys’ Fees

Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.

In the event Kayak305 is the prevailing party in any Dispute, subject to any exceptions in this Section 14, Vendor shall pay to Kayak305 all reasonable attorneys’ fees and costs incurred by Kayak305 in connection with any Dispute.

Other

1. The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.

2. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.

3. Vendor is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Kayak305’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of Kayak305. Kayak305 is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all the assets or business, or by operation of law, without notice to Vendor.

4. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.

5. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF VENDORABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. KAYAK305 DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICE OR GOODS ARE ERROR-FREE, OR THAT ANY VENDOR OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR VENDOR.