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Home My WebLink AboutAGREEMENT BETWEEN DIIO LLC AND AUGUSTA AVIATION COMMISSION ON BEHALF OF THE AUGUSTA REGIONAL AIRPORT d!io SUBSCRIPTION AGREEMENT This Subscription Agreement (the "Agreement ") is effective as of the date set forth below (the "Effective Date ") between: "Diio ": Diio, LLC, a California limited liability company 1775 Wiehle Ave., Suite 330, Reston, Virginia 20190 Phone: (408) 353 -0530 E -Mail: legal.noticesna diio.net And "Customer": Augusta Aviation Commission, on behalf of the Augusta Regional Airport 1501 Aviation Way, Augusta, Georgia 30906 Phone: (706) 798 -3236 E -Mail: djohnston(�augustaga.gov Effective Date: January 1 2015 This Agreement consists of the Terms and Conditions set forth below, the attached Exhibits, and the Terms of Service (defined below). As used throughout this Agreement, Diio, and Customer are sometimes referred to individually as a "party" or collectively as the "parties." The parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date. DIIO, LLC AUGUSTA AVIATION COMMISSION A s(:), z - r; Signature Signa ure 8 1 ag I 1 9 Jordan Kayloe Douglas Lively Name Name Senior Vice President Aviation Commission Chairman Title Title TERMS AND CONDITIONS 1. Definitions. 1.3 "Authorized User" means those uniquely identified 1.1 "Diio Content" means the proprietary information, persons who: (i) are employed by Customer; (ii) agree to be databases, reports, maps, charts, graphs, tools, software, bound by the Terms of Service; and (iii) have received a valid documentation, and other materials that are made available to Password from Diio. Diio reserves the right not to approve an Customer and each Authorized User through the Diio Service. Authorized User. 1.2 "Diio Service" means the Diio proprietary Internet- 1.4 "Authorized User Fee" means the fee described in based report generating service, and any updates and Exhibit B that is due from Customer for access to the Diio enhancements thereto, currently referred to as "Diio Mi Express," Service by the number of Authorized Users specified in Exhibit B. that provides standard and customized reports for travel and 1.5 "Confidential Information" has the meaning set forth in airline industry data as more specifically described in Exhibit A Section 9. and that: (i) contains the Diio Content; and (ii) is hosted and 1.6 "Initial Term" has the meaning set forth in Section 10. served on the Site. 1 dho 4.2 Customer Obligations. Customer agrees to be customers or users against viruses, worms, or other items of a responsible for providing accurate and complete information about destructive nature. Customer further agrees that Diio PROVIDES each Authorized User on registration as reasonably requested by THE DI10 SERVICE, THE SITE, AND THE DI10 CONTENT ON Diio. Customer agrees to review and update such information at AN "AS -IS" AND "WHERE -IS" BASIS. EXCEPT FOR THE least quarterly for accuracy. Diio may, in its sole discretion, TARGET SERVICE LEVELS SET FORTH IN EXHIBIT C, DI10 terminate the accounts or access rights of any Authorized Users DOES NOT WARRANT THAT THE DI10 SERVICE, THE SITE, for whom inaccurate or incomplete information was provided OR THE DI10 CONTENT (OR ACCESS THERETO) WILL BE during registration, for any Authorized User who Diio believes has ERROR FREE, CURRENT, OR UNINTERRUPTED, OR THAT violated the Terms of Service, and for any Authorized User who ALL ERRORS CAN OR WILL BE CORRECTED. DI10 MAKES does not appear on the then - current list of Authorized Users NO OTHER WARRANTIES WITH RESPECT TO THE DI10 provided by Customer. Customer is responsible for all activities SERVICE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR that occur under Authorized User passwords. Customer shall OTHERWISE, AND DI10 EXPRESSLY DISCLAIMS ALL OTHER notify all of its Authorized Users to keep such passwords WARRANTIES, INCLUDING BUT NOT LIMITED TO THE confidential. Customer and /or individual Authorized Users must IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS notify Diio immediately of any unauthorized use of passwords or if FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES they believe that any such password is no longer confidential. ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE Diio reserves the right to require Authorized Users to alter PRACTICE. passwords if Diio believes that such password is no longer 7. Limitations of Liability. secure. 4.3 Remedies. Diio and its licensors reserve the right to 7.1 CUSTOMER AGREES THAT IN NO EVENT WILL DI10 OR ITS LICENSORS BE LIABLE TO CUSTOMER OR TO ANY investigate complaints or reported violations of this Agreement or THIRD PARTY CLAIMING THROUGH CUSTOMER FOR THE the Terms of Service and /or applicable licenses and copyrights and to take any action they deem appropriate including, without RESULTS OF CUSTOMER'S OR ITS AUTHORIZED USERS' USE OF THE DI10 SERVICE, THE SITE, OR THE DI10 limitation, reporting and providing information of any suspected CONTENT, OR FOR ANY SPECIAL, INCIDENTAL, unlawful activity to law enforcement officials, regulators, or other CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES EVEN third parties, including disclosing any information necessary or IF DI10 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH appropriate to such persons or entities relating to user profiles, e- DAMAGES. mail addresses, usage history, posted materials, IP addresses, and traffic information. Diio and its licensors reserve the right to 7.2 THE CUMULATIVE LIABILITY OF DI10 AND ITS seek all remedies available at law and in equity for violations of LICENSORS TO CUSTOMER FOR ALL CLAIMS ARISING this Agreement or the Terms of Service, including, but not limited UNDER THIS AGREEMENT, UNDER ANY LEGAL OR to, the right to block access to the Diio Service from a particular EQUITABLE THEORY, INCLUDING NEGLIGENCE, SHALL NOT Internet address or username. EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO DI10 5. Proprietary Rights. All right, title, and interest in and to HEREUNDER. the Diio Service, the Diio Content, the Reports, the Site, and any 8 . Indemnification. Diio shall, at its expense, defend, related documentation, including any corrections, updates, indemnify, and hold Customer and its Authorized Users harmless adaptations, enhancements thereto, or authorized copies thereof, from and against any claim, suit, proceeding or loss, damages, or shall remain exclusively with Diio and its licensors, as applicable. liability of any kind resulting from, arising out of, or related to a Access to the Diio Service and /or the Site is provided to claim that the software used to provide the Diio Service and /or the Authorized Users only to allow Customer to exercise Customer's Diio Content infringes or misappropriates any third party rights under this Agreement. Because the Content incorporates copyright, trade secret, or U.S. patent; provided that Customer Content from Diio's licensors, it may contain other proprietary provides Diio with prompt notice of such claims, gives Diio the notices, licenses, and terms for use of copyrighted information, sole right to control the defense of such claims, and provides Diio the terms of which must be observed and followed by Customer with reasonable assistance with respect to the defense thereof. In and all Authorized Users. In the event of any conflict between the the event that the use of the Diio Service is or may be enjoined, license(s) applicable to Content on the Diio Service and the Diio will use commercially reasonable efforts to replace the Terms of Service, the applicable license(s) prevail. infringing Diio Service with a non - infringing version of the Diio 6. Disclaimer. Customer acknowledges and agrees that Service of substantially equivalent functionality. CUSTOMER any collection and compilation of data may result in the likelihood ACKNOWLEDGES THAT THE FOREGOING INDEMNITY AND of some human and machine errors, omissions, delays, LIMITED REMEDY IS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND DI10'S SOLE AND EXCLUSIVE LIABILITY, interruptions, and losses, including inadvertent loss of data or WITH RESPECT TO THE INFRINGEMENT BY THE DI10 damage to media, which may give rise to loss or damage. Diio makes no representations or warranties that the Diio Service is SERVICE CONTENT OF ANY THIRD PARTY'S free of bugs or other errors, or that it will operate continuously, or INTELLECTUAL PROPERTY RTY RIGHTS. that the Content is complete, accurate, or free of malicious items. 9. Confidential Information. For the purposes of this Diio assumes no responsibility for any errors or omissions in the Agreement, "Confidential Information" means any and all: (i) Diio Content or any damage caused by use of the Diio Service or technical and non - technical information including patent, trade the Diio Content. Customer and its Authorized Users download or secret, and proprietary information, techniques, sketches, use Diio Content obtained from using the Diio Service at their own drawings, models, inventions, know -how, processes, apparatus, risk. Customer and its Authorized Users have the sole obligation equipment, and algorithms related to the Diio Service, the Diio to ensure that in using the Diio Service or downloading Diio Content, or the Site; (ii) information relating to costs, prices and Content they protect their systems and the systems of any of their names, finances, marketing plans, business opportunities, personnel, research, development, or know -how; and (iii) 3 d!io EXHIBIT A DESCRIPTION OF DIIO SERVICE The Diio Service includes the following data, tools and information: • Worldwide Airline Schedule Data • U.S. Department of Transportation ( "DOT ") Origin and Destination ( "O &D ") Data ( "DB1 B ") • U.S. DOT Onboard Data ( "T -100 ") • Miscellaneous Tools • Demographics Map tool • Reference Data • Airline Codes, Names, and Alliance Members • Airline Equipment Types and Seat Counts • Airport Codes, Names, and Locations • Great Circle Route Distance Calculators 5 , d!io EXHIBIT C SERVICE LEVELS AND SUPPORT 1. Definitions. 1.1 "Force Majeure Event" means (i) compliance with any act, order, demand, or request of any government or governmental authority, agency, or instrumentality; (ii) labor disputes, difficulties, work stoppages, or work slowdowns of any kind; (iii) hurricane, earthquake, flood, and other natural disasters or fires; (iv) war, rebellion, or civil disorder; or (v) any other cause beyond Diio's reasonable control. 1.2 "Maintenance Outage" means a planned or unplanned maintenance period, including without limitation any maintenance downtime or maintenance outage, not to exceed an aggregate of fifteen (15) hours in any three (3) calendar month period during the Term and, in any case, no more than seven and one -half (7') hours per calendar month. 1.3 "Service Outage" means any time when the Diio Service is inoperable or unavailable due to or caused by reasons within Diio's control, excluding specifically the following reasons: (i) Customer's own Internet service provider; (ii) a Force Majeure Event; (iii) any systemic Internet failures; or (iv) any failure in a Customer's own hardware, software, or network connection. 1.4 "Unit Hours of Operation" shall be twenty -four (24) hours per day, three - hundred sixty-five (365) days per year, excluding any Maintenance Outage. 2. Availability of Services. Diio will use commercially reasonable efforts to ensure that the Diio Service will be available at least ninety -nine percent (99 %) of the time measured monthly, using the following formula: Uptime = Unit Hours of Operation minus Service Outages Unit Hours of Operation 3. Maintenance Outages. Diio will post a notification on the Site for each Maintenance Outage at least forty - eight (48) hours in advance, whenever practicable of the occurrence of any such outage. Diio will use commercially reasonable efforts to perform scheduled maintenance between 8:00 p.m. Friday and 8:00 a.m. Monday, Pacific Time. 4. Support Services. Diio shall provide telephone and email support to Customer for problems that interrupt or significantly impair the operation of the Diio Service. A designated Diio customer service representative will respond to all emails within two (2) U.S. business days of each Customer query. Diio will provide status updates at regular intervals as appropriate until the issue has been satisfactorily resolved. In addition, Diio will track and correct all reproducible problems related to the functionality of the Diio Service within two (2) U.S. business days of receiving a report thereof. 7 • AUGUSTA RICHMOND COUNTY C_V----eR1 C--- ------_____ g M Deke S. Copenhaver, Mayor e 1/ 51 1 4.1 2 A.1.1.E jr r ,..' . . T OO 4 t Z , l `,; • \I1i a- i / •••• 4, L e n a Bon R B o i l %,01. ®� Approved as to Form: . e j41) i / 11 4 411 , Andrew Mackenzie, Esq. 1