HomeMy WebLinkAboutA6082 - DIIO LLC ONLINE AIRLINE SCHEDULING SERVICES DocuSign Envelope ID:374F692A-0630-405D-BA3. '43D13198EA
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SUBSCRIPTION AGREEMENT
This Subscription Agreement(the"Agreement") is effective as of the date set forth below(the"Effective Date") between:
"Diio": Reed Business Information Inc., a Texas Corporation,
having business address at 522 SW 5th Avenue, Suite 200, Portland, Oregon 97204
And
"Customer': City of Palm Springs
3400 E. Tahquitz Canyon Way P.O. Box 2743, Palm Springs, CA, 92263-2743
Phone: 760-318-3807 E-Mail: caren.nelsonapalmspringsca.gov
Effective
Date: July 1, 2019 for a one-year Term ending on June 30, 2020
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.
REED BUSINESS INFORMATION INC. CITY OF PALM SPRINGS
Signature Signature
Ruben Kempeneer
Name Name
vP sales L I-ry �
Title Title
25-3un-2019
Date
1PROM AS TO Fh Date
J
dty Clerk
TERMS AND CONDITIONS
1. Definitions. 1.2 "Authorized User" means those uniquely identified
1.1 "Diio Content' or"Content" means the Diio proprietary persons who: (i)are employed by Customer; (ii)agree to be bound
information, databases, reports, maps, charts, graphs, tools, by the Terms of Service; and (iii) have received a valid User
software, documentation, and other materials that are made Credentials from Diio. Diio reserves the right not to approve an
available to Customer and each Authorized User through the Diio Authorized User.
Service. 1.3 "Authorized User Fee' means the fee described in
"Diio Service"means the Diio proprietary Internet-based report Exhibit B that is due from Customer for access to the Diio Service
generating service, and any updates and enhancements thereto, by the number of Authorized Users specified in Exhibit B.
currently referred to as"Diio Mi°,that provides standard and 1.4 "Confidential Information"has the meaning set forth in
customized Reports for travel and airline industry data as more Section 9.
specifically described in Exhibit A and that:(i)contains the Diio 1.5 "Initial Term"has the meaning set forth in Section 10.
Content; and(ii)is hosted and served on the Site.
1 APPROV91 r Y 1,1117°>?PIACER
AWZ 1I 409
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1.6 "Renewal Term"has the meaning set forth in Section 10. If Customer has made favorable comments about Diio or the Diio
1.7 "Reports" means individual data analysis reports, Service, Customer agrees that Diio may reproduce these
including, without limitation, maps, charts, and graphs, generated comments in its marketing materials or on its website. Diio may
by the Diio Service pursuant to data parameters requested by an also permit its affiliate or authorized partners to name Customer as
Authorized User. a user or reproduce favorable comments in their marketing
materials or on their websites.
1.8 "Site' means the Diio Internet websites hosted and
maintained by or on behalf of Diio,and any successor sites thereto, 3. Fees and Payment.
at which Authorized Users may access the Diio Service. 3.1 Authorized User Fees. Customer agrees to pay Diio the
1.9 "Term"has the meaning set forth in Section 10. applicable Authorized User Fees for services provided during the
Initial Term. Authorized User Fees for each Renewal Term shall
1.10 "Terms of Service" means the online terms and be based on Diio's then-current license fees. At Customer's
conditions related to the use of the Diio Service that are posted on request within seventy-five (75) days of the end of the Term, Diio
the Site at the"Terms of Service"page and that a user must accept will provide a written schedule of its then-current fees that would
before accessing the Diio Service. apply to any Renewal Term.
1.11 "User Credentials" means unique username and User 3.2 Additional Fees. Customer understands that Diio incurs
Credentials assigned to Authorised Users by Diio that permits them costs for changing Authorized Users and agrees that Diio may
access to the Diio Service. impose a fee at its then-current rates if Customer changes its
Authorized Users on average more than once per month. In
2. Customer Rights and Obligations. addition, fees for additional services such as onsite or remote
training, consulting, or enhancement services shall be at Diio's
2.1 License Grant. Subject to the terms of this Agreement, then-current rates for such services. Additionally, Customer shall
Diio hereby grants Customer a non-exclusive, non-transferable reimburse Diio monthly in arrears for Diio's reasonable travel,
right and license during the Agreement Term to allow the number telephone, and other out-of-pocket expenses incurred in providing
of Authorized Users for which Customer has purchased a such services, provided such expenses have been pre-approved
subscription to access and use the Diio Service to generate by Customer. Diio will provide Customer with adequate
Reports solely for Customer's internal business purposes. documentation for all such expenses.
Customer acknowledges that Diio: (i) has complete and sole 3.3 Payment/Timing. Payments shall be due in accordance
discretion over the selection and arrangement of Content available with the terms set forth in Exhibit B. All amounts are due in United
on the Diio Service; (ii)can move or delete Content at any time for States Dollars (US$) and are net of any taxes or applicable wire
any reason; and (III) does not warrant accuracy or correctness of transfer fees. Customer agrees that it will be responsible for all
any Content on the Diio Service. Diio and its licensors may also sales,use,or services taxes of any kind,with the exception of taxes
make improvements and/or changes to the Diio Service or the based on Diio's income.
Content at any time without notice.
2.2 Reports. In addition to the foregoing, Customer may
am Late Payments. If Customer fails to timely pay any
reproduce and publish Reports internally and to Customer's clients, amount due within thirty days of the payment due date:
Customer shall pay, in addition,interest at the rate of one and one
-
provided Customer includes an attribution statement half percent (1'/z%) per month, but not to exceed the maximum
acknowledging Diio's ownership of the Report and Content. This allowed by law; and (ii) Diio may, at Diio's option, suspend
attribution statement shall be in a form and manner prescribed and Customer's and its Authorized Users' access to the Diio Service
approved by Diio. If Diio determines, in its sole discretion, that and, if the delinquency continues for an additional fifteen(15)days
Customer is distributing or publishing any Reports in a manner after the initial suspension date, Diio may, at its option, terminate
detrimental to Diio's business, Customer shall immediately cease this Agreement. Fees will continue to accrue during any such
distributing and/or publishing the Reports upon receipt of Diio's suspension.
written notice.
4. Authorized Users.
2.3 Restrictions. Except as expressly authorized in this
Agreement, Customer: (i)will use reasonable efforts to ensure that 4.1 Registration. Upon execution of this Agreement,Diio will
neither the Diio Service, the Diio Content, nor any Reports are provide Customer with instructions on how Authorized Users shall
displayed outside of the Site or distributed in any way to any third access the Diio Service. Prior to his or her initial access to the Diio
party; (ii)shall not rent, lease,distribute,transfer,copy, reproduce, Service, each Authorized User: (i) shall register with Diio as set
display,modify,or timeshare the Diio Service,the Diio Content,the forth in the registration procedures posted on the Site and (ii)
Reports,or any portion thereof;(iii)will take all reasonable steps to electronically agree to the Terms of Service document on the Site.
protect the Diio Service and the Site from unauthorized access or All collection and use of Authorized User data submitted during
use; (iv)will use best efforts to prevent third parties from obtaining registration shall be in accordance with Diio's then-current
User Credentials;and(v)will immediately inform Diio of any actual published privacy policy.
or potential unauthorized access to a User Credentials or to the 4.2 Customer Obligations. Customer agrees to be
Diio Service. Diio reserves all rights not expressly granted in this responsible for providing accurate and complete information about
Agreement. each Authorized User on registration as reasonably requested by
2.4 Service Levels. Diio will host and maintain Diio Service Diio. Customer agrees to review and update such information at
in accordance with the target service levels described in Exhibit C. least quarterly for accuracy. Diio may, in its sole discretion,
2.5 Support. Diio will provide support for the Diio Service in terminate the accounts or access rights of any Authorized Users for
accordance with the terms of Exhibit C. whom inaccurate or incomplete information was provided during
registration,for any Authorized User who Diio believes has violated
2.6 Identification of Customer. Customer agrees that Diio the Terms of Service, and for any Authorized User who does not
may name Customer as a user of the Diio Service in its marketing appear on the then-current list of Authorized Users provided by
materials and on its website without payment of any separate fees. Customer. Customer is responsible for all activities that occur
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under Authorized User's User Credentials. Customer shall notify FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES
all of its Authorized Users to keep such User Credentials ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE
confidential. Customer and/or individual Authorized Users must PRACTICE.
notify Diio immediately of any unauthorized use of User Credentials 7. Limitations of Liability.
or if they believe that any such User Credentials is no longer
confidential. Diio reserves the right to require Authorized Users to 7.1 CUSTOMER AGREES THAT IN NO EVENT WILL DI10
alter User Credentialsif Diio believes that such User Credentials is OR ITS LICENSORS BE LIABLE TO CUSTOMER OR TO ANY
no longer secure. THIRD PARTY CLAIMING THROUGH CUSTOMER FOR THE
RESULTS OF CUSTOMER'S OR ITS AUTHORIZED USERS'
4.3 Remedies. Diio and its licensors reserve the right to USE OF THE DI10 SERVICE, THE SITE, OR THE DI10
investigate complaints or reported violations of this Agreement or CONTENT, OR FOR ANY SPECIAL, INCIDENTAL,
the Terms of Service and/or applicable licenses and copyrights and CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES EVEN
to take any action they deem appropriate including, without IF DI10 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
limitation, reporting and providing information of any suspected DAMAGES.
unlawful activity to law enforcement officials, regulators, or other
third parties, including disclosing any information necessary or 7.2 THE CUMULATIVE LIABILITY OF DI10 AND ITS
appropriate to such persons or entities relating to user profiles, e- LICENSORS TO CUSTOMER FOR ALL CLAIMS ARISING
mail addresses,usage history,posted materials, IP addresses,and UNDER THIS AGREEMENT, UNDER ANY LEGAL OR
traffic information. Diio and its licensors reserve the right to seek EQUITABLE THEORY, INCLUDING NEGLIGENCE, SHALL NOT
all remedies available at law and in equity for violations of this EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO DI10
Agreement or the Terms of Service, including, but not limited to, FOR THE THEN CURRENT INITIAL TERM OR RENEWAL TERM
the right to block access to the Diio Service from a particular
Internet address or username. 8. Indemnification. Diio shall, at its expense, defend,
5. Proprietary Rights. All right, title, and interest in and to indemnify, and hold Customer and its Authorized Users harmless
the Diio Service, the Diio Content, the Reports, the Site, and any from and against any claim, suit, proceeding or loss, damages, or
related documentation, including any corrections, updates, liability of any kind resulting from,arising out of,or related to a claim
adaptations, enhancements thereto, or authorized copies thereof, that the software used to provide the Diio Service and/or the Diio
shall remain exclusively with Diio and its licensors, as applicable. Content infringes or misappropriates any third party copyright,
Access to the Diio Service and/or the Site is provided to Authorized trade secret, or U.S. patent; provided that Customer provides Diio
Users only to allow Customer to exercise Customer's rights under with prompt notice of such claims,gives Diio the sole right to control
this Agreement. Because the Content incorporates Content from the defense of such claims, and provides Diio with reasonable
Diio's licensors, it may contain other proprietary notices, licenses, assistance with respect to the defense thereof. In the event that
and terms for use of copyrighted information, the terms of which the use of the Diio Service is or may be enjoined, Diio will use
must be observed and followed by Customer and all Authorized commercially reasonable efforts to replace the infringing Diio
Users. In the event of any conflict between the license(s) Service with a non-infringing version of the Diio Service of
applicable to Content on the Diio Service and the Terms of Service, substantially equivalent functionality. CUSTOMER
the applicable license(s)prevail. ACKNOWLEDGES THAT THE FOREGOING INDEMNITY AND
LIMITED REMEDY IS CUSTOMER'S SOLE AND EXCLUSIVE
6. Disclaimer. Customer acknowledges and agrees that
REMEDY,AND DI10'S SOLE AND EXCLUSIVE LIABILITY,WITH
any collection and compilation of data may result in the likelihood RESPECT TO THE INFRINGEMENT BY THE DI10 SERVICE AND
of some human and machine errors, omissions, delays, THE DI10 CONTENT OF ANY THIRD PARTY'S INTELLECTUAL
interruptions, and losses, including inadvertent loss of data or PROPERTY RIGHTS.
damage to media, which may give rise to loss or damage. Diio
makes no representations or warranties that the Diio Service is free 9. Confidential Information. For the purposes of this
of bugs or other errors, or that it will operate continuously, or that Agreement, "Confidential Information" means any and all: (i)
the Content is complete, accurate, or free of malicious items. Diio technical and non-technical information including patent, trade
assumes no responsibility for any errors or omissions in the Diio secret, and proprietary information, techniques, sketches,
Content or any damage caused by use of the Diio Service or the drawings, models, inventions, know-how, processes, apparatus,
Diio Content. Customer and its Authorized Users download or use equipment, and algorithms related to the Diio Service, the Diio
Diio Content obtained from using the Diio Service at their own risk. Content, or the Site; (ii) information relating to costs, prices and
Customer and its Authorized Users have the sole obligation to names, finances, marketing plans, business opportunities,
ensure that in using the Diio Service or downloading Diio Content personnel, research, development, or know-how; and (iii)
they protect their systems and the systems of any of their information designated by either party as confidential in writing or,
customers or users against viruses, worms, or other items of a if disclosed orally, reduced to writing within thirty (30) days.
destructive nature. Customer further agrees that Diio PROVIDES Notwithstanding the foregoing, "Confidential Information" shall not
THE DI10 SERVICE,THE SITE,AND THE DI10 CONTENT ON AN include information that: (1) is or becomes generally known or
"AS-IS" AND "WHERE-IS" BASIS. EXCEPT FOR THE TARGET available by publication, commercial use, or otherwise through no
SERVICE LEVELS SET FORTH IN EXHIBIT C, DI10 DOES NOT fault of the receiving party; (2) is known and has been reduced to
WARRANT THAT THE DI10 SERVICE, THE SITE, OR THE DI10 tangible form by the receiving party at the time of disclosure and is
CONTENT (OR ACCESS THERETO) WILL BE ERROR FREE, not subject to restriction; (3)is independently developed or learned
CURRENT,OR UNINTERRUPTED,OR THAT ALL ERRORS CAN by either party; or (4) is released for publication in writing. Each
OR WILL BE CORRECTED. DI10 MAKES NO OTHER party agrees that it will not, and will ensure that its employees,
WARRANTIES WITH RESPECT TO THE D110 SERVICE, agents, and contractors will not, make use of, disseminate, or in
WHETHER EXPRESS, IMPLIED, STATUTORY, OR any way disclose any Confidential Information of the other party to
OTHERWISE, AND DI10 EXPRESSLY DISCLAIMS ALL OTHER any person,firm,or business,except for any purpose the disclosing
WARRANTIES, INCLUDING BUT NOT LIMITED TO THE party may hereafter authorize in writing. Each party agrees that it
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS will treat all Confidential Information with the same degree of care
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as it accords to its own Confidential Information, and each party as for responding to any requests from any data
represents that it exercises reasonable care to protect its own subject(subject to Clause 4 of the DPA).
Confidential Information. 12.5 For the purposes of this Agreement : The terms
10. Term. The term of this Agreement shall begin on the "controller', "data subject", "personal data",
Effective Date and shall continue for the period set forth in Exhibit "personal data breach", "processing", and
to
and
B, unless earlier terminated as set forth below(the "Initial Term"). "processor' will have the meanings ascribed
them in the Data Protection Laws, and where the
There is no Renewal Term for this Agreement. The Initial Term
may be referred to in this Agreement as the"Term." relevant Data Protection Laws use the term `data
controller'or`data processor',they shall be read as
11. Termination. Either party may terminate this Agreement controller and processor, respectively. "Data
by giving thirty (30) days prior written notice before the Protection Laws" means all data protection laws
commencement of a Renewal Term. Either party may terminate and regulations, including those of the United
this Agreement upon thirty (30) days' written notice of a material Kingdom ("UK"), Switzerland, European Economic
breach of this Agreement by the other party if such breach is not Area ("EEA") and the European Union ("Union"),
cured within such thirty (30) day period; provided, however, that applicable to the processing of personal data under
any willful unauthorized access, use, copying, disclosure, the Agreement, including the Regulation 2016/679
distribution, or sublicensing of the Diio Service, the Diio Content, of the European Parliament and of the Council of
Reports, or the Site by Customer or any Authorized User will be 27 April 2016 on the protection of natural persons
deemed a material breach of this Agreement that cannot be cured. with regard to the processing of personal data and
In addition to the foregoing, either party may terminate this on the free movement of such data, and repealing
Agreement immediately upon the insolvency, filing for bankruptcy Directive 95/46/EC (General Data Protection
(whether voluntary or involuntary), receivership, or general Regulation)("GDPR")from May 25, 2018.
assignment for the benefit of creditors of the other party. Upon the
expiration or earlier termination of the Agreement:(i)each party will 13. Miscellaneous. This Agreement shall be governed by
return to the other party any Confidential Information of the other the laws of the State of New York, without reference to conflict of
party; (ii)all fees for services rendered prior to the effective date of laws principles. Customer acknowledges that the Diio Service and
termination shall be immediately due and payable; and (iii) the Diio Content may be subject to the export controls laws and
Customer and each Authorized User will no longer be provided regulations of the United States and other jurisdictions. Customer,
access to the Diio Service or the Site. for itself and its Authorized Users, agrees to faithfully comply with
12. Data Protection. all such laws and regulations, and agrees to hold Diio entirely
12.1 To the extent applicable under the Data Protection harmless from and against any liability, costs, damages, or
Laws, the Customer in the process of accessing expenses of any kind, including without limitation attorneys' fees,
and using the Diio Service, it and its Authorized related to Customer's breach of such laws and regulations. Except
Users will supply personal data. Customer for Diio's right to seek injunctive relief to protect its proprietary rights
represents and warrants that it and the Authorized hereunder,the parties hereby consent and submit to the exclusive
Users have complied with all applicable obligations jurisdiction of the federal and state courts sitting in the Southern
under the Data Protection Laws in supplying District of New York for the resolution of any dispute arising out of
personal data to Diio, including providing any this Agreement. The English language text of this Agreement shall
required notices and obtaining any required prevail over any translation into any other language. Except for the
consents and authorizations for Diio's processing obligation to make payments,non-performance of either party shall
such personal data,and that it is responsible for its be excused to the extent the performance is rendered impossible
decisions and actions concerning the use and other by strike, fire, flood, governmental acts or orders or restrictions,
processing of the personal data. failure of suppliers, or any other reason where failure to perform is
12.2 To the extent that Diio acts as a processor of beyond the reasonable control of and is not caused by the
personal data on Customer's behalf, Diio will negligence of the non-performing party. Any failure by a party at
process such personal data in accordance with the any time or from time to time to enforce or require strict compliance
Data Protection Laws and,as of May 25,2018,the with any term or condition of this Agreement will not constitute a
GDPR Data Processing Addendum attached to waiver of such term or condition. No waiver will be enforceable
these Agreement as Exhibit D unless embodied in a writing signed by the party charged with such
12.3 Customer acknowledges and agrees that the Diio waiver. Except as explicitly provided herein, this Agreement may
Service that Diio provides include (i) compiling not be modified except by a written instrument signed by both
statistical and other information related to the parties. In the event of the invalidity,in whole or in part,of any term
performance,operation and use of the Diio Service, of this Agreement, the parties agree that such invalidity shall not
and (ii)use data in aggregated and/or anonymized affect the validity of any other term of this Agreement and that such
form for security and operations management or term shall be subject to partial enforcement to the extent permitted
for research and development purposes or other under applicable law. Any notice required or permitted to be sent
business purposes, provided that such information under this Agreement shall be delivered by hand, by overnight
and data will not identify or serve to identify courier, or by registered mail, return receipt requested, to the
Customer or any data subject. address of the parties set forth in this Agreement or to such other
12.4 The Diio products provide analysis and insight, address of the parties designated in writing in accordance with this
Customer alone will be responsible for any subsection. This Agreement is not assignable by Customer without
decisions it may take using insights from Diio the prior written consent of Diio, which consent shall not be
Products as one of several factors, and that unreasonably withheld. Any attempt at assignment by Customer,
therefore Customer will be responsible for including by means of merger, acquisition, operation of law, or
compliance with any requirements under Articles otherwise, without such consent shall be null and void and of no
21 or 22 GDPR in so far as they might arise as well
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force and effect. Subject to the foregoing, this Agreement shall and supersede all prior or contemporaneous proposals or
inure to the benefit of and be binding upon the parties, their communications,oral or written,between the parties relating to the
successors, and assigns. Sections 1, 3 (with respect to any fees subject matter of the Agreement. In the event of any conflict
generated prior to the effective date of termination), and 5 through between this Agreement, the Terms of Service, and the Exhibits,
12 shall survive the expiration of this Agreement. This Agreement, this Agreement shall be controlling.
the Terms of Service,and the Exhibits attached hereto set forth the
entire understanding and agreement between Customer and Diio
[END OF TERMS AND CONDITIONS]
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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("0&D")Data ("DB1 B")
• All U.S. users must complete their Certification to Protect Restricted Release Aviation Economic
Information, which is available from Diio or the Office of Airline Information at the DOT's Bureau of
Transportation Statistics. Non-U.S. users do not have access to international O&D data, but may access
U.S.domestic O&D data.
• U.S. DOT Onboard Data("T-100")
• U.S. DOT Form 41 Data
• Miscellaneous Tools
• Airline Performance tool
• Demographics Map tool
• Reference Data
• Airline Codes, Names, and Alliance Members
• Airline Equipment Types and Seat Counts
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EXHIBIT B
AUTHORIZED USER FEES
Authorized Users and Fees for Term for Diio Mi:
Number of permitted Authorized Total Authorized User Fee Monthly Authorized User
Users Payable Fees
4 $19,008 $1,584
Term: One(1)year-July 1,2019 to June 30,2020
Payment Terms: Diio shall issue invoices for the Authorized User Fees Monthly, in advance. All fees shall be due
within thirty(30)days from the invoice date. Payments made by wire transfer should include the wire transfer fee of
the outgoing bank, in addition to the Authorized User Fee.
Invoicing Information:
Diio Contact Information for Invoicing
Name: Eva Cooper
Address: Diio, LLC Phone: +1 (703)956-1389
P.O. Box 146 Fax: +1 (703)595-2040
Mt.Vernon,VA 22121-0146 E-Mail: eva.cooper@diio.net
USA
Customer's primary contact, Caren Nelson, will also handle invoicing, with the contact info given at the beginning of
this Agreement.
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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(71/) 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; or(v)any failure outside reasonable control of Diio.
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.
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EXHIBIT D
GDPR DATA PROCESSING ADDENDUM
1. SCOPE
1.1. To the extent as applicable under the Data Protection Laws,this GDPR Data Processing Addendum("DPA")
applies to Diio's processing of personal data on Customer's behalf under the Agreement.With regard to
such processing, Customer is the controller of the personal data and Diio are the processor of the personal
data.This DPA does not apply where Diio are a controller of personal data.
2. PROCESSING
2.1. Diio shall not engage another processor without Customer's prior specific or general written authorisation.
In the case of general written authorisation, Diio shall inform Customer of any intended changes concerning
the addition or replacement of other processors, thereby giving Customer the opportunity to object to such
changes in the manner more specifically set forth herein.
2.2. Diio's processing shall be governed by this DPA under Union or governing Member State law as set forth in
the Agreement. In particular, Diio shall:
a) process the personal data only on Customer's documented instructions,including with regard to transfers
of personal data to a third country or an international organisation, unless required to do so by the Union
or Member State law governing such personal data; in such a case, Diio shall inform Customer of that
legal requirement before processing, unless that law prohibits such information on important grounds of
public interest;
b) ensure that persons authorised to process the personal data have committed themselves to confidentiality
or are under an appropriate statutory obligation of confidentiality;
c) take all measures required pursuant to Article 32 of the GDPR;
d) respect the conditions referred to in paragraphs 2.1 and 2.3 for engaging another processor;
e) taking into account the nature of the processing, assist Customer by appropriate technical and
organisational measures, insofar as this is possible,for the fulfilment of Customer's obligation to respond
to requests for exercising the data subject's rights laid down in Chapter III of the GDPR;
f) assist Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR
taking into account the nature of processing and the information available to Diio;
g) at Customer's choice and/or on expiry or termination of the Agreement, delete or return to Customer all
the personal data after the end of the provision of services relating to processing and delete existing
copies unless Union or Member State or other applicable law requires storage of the personal data(which,
for the avoidance of doubt,does not apply to aggregated or anonymized data);
h) make available to Customer all information necessary to demonstrate compliance with the obligations laid
down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted
by Customer or another auditor Customer mandate;
i) immediately inform Customer if,in Diio's opinion,an instruction from Customer to Diio infringes the GDPR
or other Union or Member State data protection provisions.
2.3. Where Diio engages another processor for carrying out specific processing activities on Customer's behalf,
the same data protection obligations as set out in this DPA shall be imposed on that other processor by way
of a contract or other legal act under Union or Member State law,in particular providing sufficient guarantees
to implement appropriate technical and organisational measures in such a manner that the processing will
meet the requirements of the GDPR. Where that other processor fails to fulfil those data protection
obligations, Diio shall (subject to the terms of the Agreement) remain fully liable to Customer for the
performance of that other processor's obligations.
2.4. The subject-matter of Diio's processing is the personal data provided in respect of the Diio Service under
the Agreement.The duration of the processing is the duration of the provision of the Diio Service under the
Agreement.The nature and purpose of the processing is in connection with the provision of the Diio Service
under the Agreement. The types of personal data processed are the personal data submitted to the Diio
Products. The categories of data subjects are Authorized Users whose personal data is submitted to the
Diio Products.
2.6. The Agreement including this DPA are Customer's complete and final documented instructions to Diio for
the processing of personal data.Additional or alternate instructions must be agreed upon separately by the
parties. Diio will ensure that its personnel engaged in the processing of personal data will process personal
data only on Customer's documented instructions,unless required to do so by Union,Member State or other
applicable law.
3. Sub processing
3.1. Customer hereby provide Diio general consent to engage other processors for the processing of personal
data in accordance with this DPA. Diio shall maintain a list of such processors and make it available at
Customer's request,which Diio may update from time to time.At least 14 days before authorizing any new
9
OocuSign,Envelope ID:37417692A-0630-405D-BAK'�`3D13198EA
CONFIDENTIAL
such processor to process personal data, Diio shall update the list on Diio's website and provide Customer
with a mechanism to obtain notice of that update. Customer may object to the change without penalty by
notifying Diio within 14 days after receipt of Diio's notice. Without prejudice to any applicable refund or
termination rights Customer have under the Agreement, Diio shall use reasonable endeavors to change,
modify or remove the affected Diio Products or Licensed Materials to avoid processing of personal data by
such new processor to which Customer reasonably object.
4. Data Subject Rights
4.1. Diio shall,to the extent legally permitted,promptly notify Customer of any data subject requests Diio receive
and reasonably cooperate with Customer to fulfil Customer's obligations under the GDPR in relation to such
requests. Customer shall be responsible for any reasonable costs arising from Diio's providing assistance
to Customer to fulfil such obligations.
5. Transfer
5.1. Diio shall ensure that, to the extent that any personal data originating from the UK, Switzerland or EEA is
transferred by Diio to another processor in a country or territory outside the UK,Switzerland or EEA that has
not received a binding adequacy decision by the European Commission or competent national data
protection authority, such transfer shall be subject to an appropriate transfer mechanism that provides an
adequate level of protection in accordance with the GDPR.
6. Security of Processing
6.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and
purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of
natural persons,the parties shall implement appropriate technical and organisational measures to ensure a
level of security appropriate to the risk, including inter alia as appropriate:
a) the pseudonymisation and encryption of personal data;
b) the ability to ensure the ongoing confidentiality,integrity,availability and resilience of processing systems
and services;
c) the ability to restore the availability and access to personal data in a timely manner in the event of a
physical or technical incident;and
d) a process for regularly testing,assessing and evaluating the effectiveness of technical and organisational
measures for ensuring the security of the processing.
6.2. In assessing the appropriate level of security, account shall be taken in particular of the risks that are
presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised
disclosure of, or access to personal data transmitted, stored or otherwise processed.
6.3. The parties shall take steps to ensure that any natural person acting under the authority of either party who
has access to personal data does not process them except on instructions from Customer,unless he or she
is required to do so by Union or Member State law.
7. Personal Data Breach
7.1. Diio shall notify Customer without undue delay after becoming aware of a personal data breach and shall
reasonably respond to Customer's requests for further information to assist Customer in fulfilling Customer's
obligations under Articles 33 and 34 of the GDPR.
8. Records of Processing Activities
8.1. Diio shall maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the
processing of personal data on Customer's behalf, make them available to Customer as required.
9. Audit
9.1. Audits shall be:
a) Limited to the processing of personal data and compliance with this DPA only;
b) Conducted by an independent third party reputable auditor;
c) Subject to the execution of appropriate confidentiality undertakings;
d) Conducted no more than once per year, unless a demonstrated reasonable belief of non-compliance
with the Agreement has been made, upon thirty(30)days written notice and having provided a plan for
such review; and
e) Conducted at a mutually agreed upon time and in an agreed upon manner.
10. Conflict
10.1.If there is any conflict or inconsistency between the terms of this DPA and the terms under the Agreement,
the terms of this DPA shall control to the extent required by law. Otherwise, the terms of the Agreement
shall control in the case of such conflict or inconsistency.
10
DocuSign-Envelope ID:374F692A-0630-405D-BA31 j3D13198EA
CONFIDENTIAL
EXHIBIT E
Covenant Against Discrimination. In connection with its performance under this Agreement,
Contractor shall not discriminate against any employee or applicant for employment because of
actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e.,
place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual
orientation, gender identity, gender expression,physical or mental disability, or medical condition
(each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that
employees are treated during their employment, without regard to any prohibited basis. As a
condition precedent to City's lawful capacity to enter this Agreement, and in executing this
Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any
discrimination arising from or related to any prohibited basis in any Contractor activity, including
but not limited to the following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship; and further, that Contractor is in full compliance
with the provisions of Palm Springs Municipal Code Section 7.09.040, including without
limitation the provision of benefits,relating to non-discrimination in city contracting,to the extent
such provisions are applicable.
11
am
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
497 Bird Avenue, Los Gatos, California 95032
Phone: (408) 399-0570 Fax: (408) 354-0907 E-Mail: legal.notices o.diio.net
And
"Customer": Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite OFC, Palm Springs, California 92263
Phone: (760) 318-3807 Fax: (760) 318-3815 E-Mail: Mark.Kiehl(&palmsprings-ca.gov
Effective Date: July 1s`, 2013 to June 30", 2014
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 PALM SPRINGS INTERNATIONAL AIRPORT
Signature Signature
Jordan Kayloe David H. Ready
Name Name
Senior Vice President City Manager
Title Title
oa
xe
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," that Service by the number of Authorized Users specified in Exhibit B.
provides standard and customized reports for travel and airline 1.5 "Confidential Information' has the meaning set forth in
industry data as more specifically described in Exhibit A and that: Section 9.
(i) contains the Diio Content; and (ii) is hosted and served on the 1.6 "Initial Term" has the meaning set forth in Section 10.
Site.
1
a •
1.7 "Password" means the unique password assigned to 2.6 Identification of Customer. Customer agrees that Diio
each Authorized User by Diio that permits access to the Diio may name Customer as a user of the Diio Service in its marketing
Service. materials and on its website without payment of any separate
1.8 "Renewal Tenn" has the meaning set forth in Section fees. If Customer has made favorable comments about Diio or
10. the Diio Service, Customer agrees that Diio may reproduce these
comments in its marketing materials or on its website. Diio may
1.9 "Reports" means individual data analysis reports, also permit its authorized partners to name Customer as a user or
including, without limitation, maps, charts, and graphs, generated reproduce favorable comments in their marketing materials or on
by the Diio Service pursuant to data parameters requested by an their websites.
Authorized User.
3. Fees and Payment.
1.10 "Site" means the Diio Internet websites hosted and
maintained by or on behalf of Diio, and any successor sites 3.1 Authorized User Fees. Customer agrees to pay Diio the
thereto, at which Authorized Users may access the Diio Service. applicable Authorized User Fees for services provided during the
Initial Term. Authorized User Fees for each Renewal Term shall
1.11 "Tenn"has the meaning set forth in Section 10. be based on Diio's then-current license fees. At Customer's
1.12 "Terms of Service" means the online terms and request within seventy-five (75) days of the end of the Term, Diio
conditions related to the use of the Diio Service that are posted on will provide a written schedule of its then-current fees that would
the Site at the "Terms of Service" page and that a user must apply to any Renewal Term.
accept before accessing the Diio Service. 3.2 Additional Fees. Customer understands that Diio incurs
2. Customer Rights and Obligations. costs for changing Authorized Users and agrees that Diio may
2.1 License Grant. Subject to the terms of this Agreement, impose a fee at its then-current rates if Customer changes its
Diio hereby grants Customer anon-exclusive, non-transferable Authorized Users on average more than once per month. In
right and license during the Agreement Term to allow the number addition, fees for additional services such as onsite or remote
of Authorized Users for which Customer has purchased a training, consulting, or enhancement services shall be at Diio's
subscription to access and use the Diio Service to generate then-current rates for such services. Additionally, Customer shall
Reports solely for Customer's internal business purposes. reimburse Diio monthly in arrears for No's reasonable travel,
Customer acknowledges that Diio: (i) has complete and sole telephone, and other out-of-pocket expenses incurred in providing
discretion over the selection and arrangement of Content such services, provided such expenses have been pre-approved
available on the Diio Service; (ii) can move or delete Content at by Customer. Diio will provide Customer with adequate
any time for any reason; and (iii) has made no effort to verify the documentation for all such expenses.
accuracy of any Content on the Diio Service. Diio and its 3.3 Payment/Timing. Payments shall be due in accordance
licensors may also make improvements and/or changes to the with the terms set forth in Exhibit B. All amounts are due in
Diio Service or the Content at any time without notice. United States Dollars and are net of any taxes or applicable wire
2.2 Reports. In addition to the foregoing, Customer may transfer fees. Customer agrees that it will be responsible for all
reproduce and publish Reports internally and to Customer's sales, use, or services taxes of any kind, with the exception of
clients, provided Customer includes an attribution statement taxes based on Diio's income.
acknowledging Diio's ownership of the Report. This attribution 3.4 Late Payments. If Customer fails to timely pay any
statement shall be in a form and manner prescribed and approved amount due within thirty (30) days of the payment due date: (i)
by Diio. If Diio determines, in its sole discretion, that Customer is Customer shall pay, in addition, interest at the rate of one and one
distributing or publishing any Reports in a manner detrimental to half percent (1'/%) per month, but not to exceed the maximum
Diio's business, Customer shall immediately cease distributing allowed by law; and (ii) Diio may, at Diio's option, suspend
and/or publishing Reports upon receipt of Diio's written notice. Customer's and its Authorized Users' access to the Diio Service
2.3 Restrictions. Except as expressly authorized in this and, if the delinquency continues for an additional fifteen (15)
Agreement, Customer: (i) will use reasonable efforts to ensure days after the initial suspension date, Diio may, at its option,
that neither the Diio Service, the Diio Content, nor any Reports terminate this Agreement. Fees will continue to accrue during any
are displayed outside of the Site or distributed in any way to any such suspension.
third party; (it) shall not rent, lease, distribute, transfer, copy, 4. Authorized Users.
reproduce, display, modify, or timeshare the Diio Service, the Diio 4.1 Registration. Upon execution of this Agreement, Diio
Content, the Reports, or any portion thereof; (iii) will take all will provide Customer with instructions on how Authorized Users
reasonable steps to protect the Diio Service and the Site from shall access the Diio Service. Prior to his or her initial access to
unauthorized access or use; (iv) will use best efforts to prevent the Diio Service, each Authorized User: (i) shall register with Diio
third parties from obtaining Passwords; and (v) will immediately as set forth in the registration procedures posted on the Site and
inform Diio of any actual or potential unauthorized access to a (ii) electronically agree to the Terms of Service document on the
Password or to the Diio Service. Diio reserves all rights not Site. All collection and use of Authorized User data submitted
expressly granted in this Agreement. during registration shall be in accordance with Diio's then-current
2.4 Service Levels. Diio will host and maintain the Diio published privacy policy.
Service in accordance with the target service levels described in 4.2 Customer Obligations. Customer agrees to be
Exhibit C. responsible for providing accurate and complete information about
2.5 Suppoft. Diio will provide support for the Diio Service in each Authorized User on registration as reasonably requested by
accordance with the terms of Exhibit C. Diio. Customer agrees to review and update such information at
least quarterly for accuracy. Diio may, in its sole discretion,
terminate the accounts or access rights of any Authorized Users
2
• s
for whom inaccurate or incomplete information was provided OR THE DIIO 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. DIIO MAKES
does not appear on the then-current list of Authorized Users NO OTHER WARRANTIES WITH RESPECT TO THE DIIO
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 DIIO 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 FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES
if 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 DIIO
investigate complaints or reported violations of this Agreement or OR ITS LICENSORS BE LIABLE TO CUSTOMER OR TO ANY
the Terms of Service and/or applicable licenses and copyrights THIRD PARTY CLAIMING THROUGH CUSTOMER FOR THE
RESULTS OF CUSTOMER'S OR ITS AUTHORIZED USERS'
and to take any action they deem appropriate including, without USE OF THE DIIO SERVICE, THE SITE, OR THE DIIO
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 DIIO 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 DIIO 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 DIIO
5. Proprietary Rights. All right, title, and interest in and to HEREUNDER.
the Diio Service, the Diio Content, the Reports, the Site, and any 6. 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
ACKNOWLEDGES THAT THE FOREGOING INDEMNITY AND
any collection and compilation of data may result in the likelihood LIMITED REMEDY IS CUSTOMER'S SOLE AND EXCLUSIVE
of some human and machine errors, omissions, delays, REMEDY, AND DIIO'S SOLE AND EXCLUSIVE LIABILITY,
interruptions, and losses, including inadvertent loss of data or WITH RESPECT TO THE INFRINGEMENT BY THE DIIO
damage to media, which may give rise to loss or damage. Diio SERVICE AND THE DIIO CONTENT OF ANY THIRD PARTY'S
makes no representations or warranties that the Diio service is INTELLECTUAL PROPERTY RIGHTS.
free of bugs or other errors, or that it will operate continuously, or
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,
customers or users against viruses, worms, or other items of a personnel, research, development, or know-how; and (iii)
destructive nature. Customer further agrees that Diio PROVIDES information designated by either party as confidential in writing or,
THE DIIO SERVICE, THE SITE, AND THE DIIO CONTENT ON if disclosed orally, reduced to writing within thirty (30) days.
AN "AS-IS" AND "WHERE-IS" BASIS. EXCEPT FOR THE Notwithstanding the foregoing, "Confidential Information' shall not
TARGET SERVICE LEVELS SET FORTH IN EXHIBIT C, DIIO include information that: (1) is or becomes generally known or
DOES NOT WARRANT THAT THE DIIO SERVICE, THE SITE, available by publication, commercial use, or otherwise through no
fault of the receiving party; (2) is known and has been reduced to
3
tangible form by the receiving party at the time of disclosure and Except for Diio's right to seek injunctive relief to protect its
is not subject to restriction; (3) is independently developed or proprietary rights hereunder, the parties hereby consent and
learned by either party; or(4) is released for publication in writing. submit to the exclusive jurisdiction of the federal and state courts
Each party agrees that it will not, and will ensure that its sitting in the Northern District of California for the resolution of any
employees, agents, and contractors will not, make use of, dispute arising out of this Agreement. The English language text
disseminate, or in any way disclose any Confidential Information of this Agreement shall prevail over any translation into any other
of the other party to any person, firm, or business, except for any language. Except for the obligation to make payments, non-
purpose the disclosing party may hereafter authorize in writing. performance of either party shall be excused to the extent the
Each party agrees that it will treat all Confidential Information with performance is rendered impossible by strike, fire, flood,
the same degree of care as it accords to its own Confidential governmental acts or orders or restrictions, failure of suppliers, or
Information, and each party represents that it exercises any other reason where failure to perform is beyond the
reasonable care to protect its own Confidential Information. reasonable control of and is not caused by the negligence of the
10. Tenn. The term of this Agreement shall begin on the non-performing party. Any failure by a party at any time or from
Effective Date and shall continue for the period set forth in Exhibit time to time to enforce or require strict compliance with any term
B, unless earlier terminated as set forth below(the"Initial Term"). or condition of this Agreement will not constitute a waiver of such
There is no Renewal Term for this agreement. The Initial Term term or condition. No waiver will be enforceable unless embodied
may be referred to in this Agreement as the"Term." in a writing signed by the party charged with such waiver. Except
as explicitly provided herein, this Agreement may not be modified
11. Termination. Either party may terminate this Agreement except by a written instrument signed by both parties. In the
upon thirty (30) days' written notice of a material breach of this event of the invalidity, in whole or in part, of any term of this
Agreement by the other party if such breach is not cured within Agreement, the parties agree that such invalidity shall not affect
such thirty (30) day period; provided, however, that any willful the validity of any other term of this Agreement and that such term
unauthorized access, use, copying, disclosure, distribution, or shall be subject to partial enforcement to the extent permitted
sublicensing of the Diio Service, the Diio Content, Reports, or the under applicable law. Any notice required or permitted to be sent
Site by Customer or any Authorized User will be deemed a under this Agreement shall be delivered by hand, by overnight
material breach of this Agreement that cannot be cured. In courier, or by registered mail, return receipt requested, to the
addition to the foregoing, either party may terminate this address of the parties set forth in this Agreement or to such other
Agreement immediately upon the insolvency, filing for bankruptcy address of the parties designated in writing in accordance with
(whether voluntary or involuntary), receivership, or general this subsection. This Agreement is not assignable by Customer
assignment for the benefit of creditors of the other party. Upon without the prior written consent of Diio, which consent shall not
the expiration or earlier termination of the Agreement! (i) each be unreasonably withheld. Any attempt at assignment by
party will return to the other party any Confidential Information of Customer, including by means of merger, acquisition, operation of
the other party; (ii) all fees for services rendered prior to the law, or otherwise, without such consent shall be null and void and
effective date of termination shall be immediately due and of no force and effect. Subject to the foregoing, this Agreement
payable; and (iii) Customer and each Authorized User will no shall inure to the benefit of and be binding upon the parties, their
longer be provided access to the Diio Service or the Site. successors, and assigns. Sections 1, 3 (with respect to any fees
12. Miscellaneous. This Agreement shall be governed by generated prior to the effective date of termination), and 5 through
the laws of the State of California, without reference to conflict of 12 shall survive the expiration of this Agreement. This
laws principles. Customer acknowledges that the Diio Service Agreement, the Terms of Service, and the Exhibits attached
and the Diio Content may be subject to the export controls laws hereto set forth the entire understanding and agreement between
and regulations of the United States and other jurisdictions. Customer and Diio and supersede all prior or contemporaneous
Customer, for itself and its Authorized Users, agrees to faithfully proposals or communications, oral or written, between the parties
comply with all such laws and regulations, and agrees to hold Diio relating to the subject matter of the Agreement. In the event of
entirely harmless from and against any liability, costs, damages, any conflict between this Agreement, the Terms of Service, and
or expenses of any kind, including without limitation attorneys' the Exhibits,this Agreement shall be controlling.
fees, related to Customer's breach of such laws and regulations.
[END OF TERMS AND CONDITIONS]
4
• a
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(0&D) Data(DB1 B)
• All U.S. users must complete their Certification to Protect Restricted Release Aviation Economic
Information, which is available from Diio or the Office of Airline Information at the DOT's Bureau of
Transportation Statistics. Non-U.S. users do not have access to international O&D data, but may access
U.S. domestic 0&D data.
• U.S. DOT Onboard Data (T100)
• U.S. DOT Form 41 Data
• Market Size Data
• Miscellaneous Tools
• Airline Performance tool
• Segment P&L tool
• 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
EXHIBIT B
AUTHORIZED USER FEES
Authorized User Fees for Initial Term:
Number of Authored Users Total Authorized User Fee Nlonthly Authorized User Fee
4 $18,000 $1,500
Initial Term: One(1)year
Payment Terms: Diio shall issue invoices for the Authorized User Fees monthly, in advance. All fees shall be due
within thirty (30) days from the invoice date. Payments made by wire transfer should include the wire transfer fee of
the outgoing bank, in addition to the Authorized User Fee.
Invoicing Information:
Vlo Contact In€ormation for Invoicing
Name: Eva Cooper
Address: Diio, LLC Phone: (703)748-5311
P.O. Box 449 Fax: (703)842-8324
Dunn Loring, VA 22027-0449 E-Mail: eva.coo er diio.net
Customers primary contact, Mark Kiehl, will also handle invoicing, with the contact info given at the beginning of this
Agreement.
6
ED M.
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'/2) 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
DOCUMENT TRACKING
Page:1
Report: One Document Detail April 27,2012
Condition: Document Numbera6082.1,
Document# Description Approval Date Expiration Date Closed Date
A6082.1 On Line Air Services 0613012010 06/30/2013
Company Name: Diio LLC
Address: , ,
Group: AIRPORT Contract Amt. Total Paid Balance
Service: In File $36,000.00 $36,000.00
xRef: Mark Kiehl 760(318.2807
Ins.Status: Certificate and Policies are OK
Document Tracking Items: Due Completed Tracking Amount Amount
Code Item Description Date Date Date Added Paid
001 Copied from Document:A6082,Company:Diio 06/29/2011
LLC
kdh this was signed without our dept's involvement 04127/2012 $18,000.00
kdh this was signed without our dept's involvement 06/30/2010 $18,000.00
"""``" END OF REPORT"""
• • Abo8a-1
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
497 Bird Avenue, Los Gatos, California 95032
Phone: (408) 399-0570 Fax: (408) 354-0907 E-Mail: legal.notices(oDd iio.net
And
"Customer': Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite OFC, Palm Springs, California 92263
Phone: (760) 318-3807 Fax: (760)318-3815 E-Mail: Mark.Kiehl anpalmspnngs-ca.gov
Effective Date: July 1s`, 2012 to June 30`h, 2013 41,5—&ppx--57o030 (OA's Stye)
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 PALM SPRINGS INTERNATIONAL AIRPORT
Signature j' Signature
Jordan Kayloe David H. Ready
Name Name 49
Senior Vice President City Manager
Title Title �t
Not To Exceed $
Without The Exprespres W
Authorization Of The City
ManaaPr
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" that Service by the number of Authorized Users specified in Exhibit B.
provides standard and customized reports for travel and airline 1.5 "Confidential Information" has the meaning set forth in
industry data as more specifically described in Exhibit A and that: Section 9.
(i) contains the Diio Content; and (ii) is hosted and served on the 1.6 "Initial Term'has the meaning set forth in Section 10.
Site.
1
1.7 "Password" means the unique password assigned to 2.6 Identification of Customer. Customer agrees that Diio
each Authorized User by Diio that permits access to the Diio may name Customer as a user of the Diio Service in its marketing
Service. materials and on its website without payment of any separate
1.8 "Renewal Term" has the meaning set forth in Section fees. If Customer has made favorable comments about Diio or
10 the Diio Service, Customer agrees that Diio may reproduce these
comments in its marketing materials or on its website. Diio may
1.9 "Reports" means individual data analysis reports, also permit its authorized partners to name Customer as a user or
including, without limitation, maps, charts, and graphs, generated reproduce favorable comments in their marketing materials or on
by the Diio Service pursuant to data parameters requested by an their websites.
Authorized User. 3. Fees and Payment.
1.10 "Site" means the Diio Internet websites hosted and
maintained by or on behalf of Diio, and any successor sites 3.1 Authorized User Fees. Customer agrees to pay Diio the
thereto,at which Authorized Users may access the Diio Service. applicable Authorized User Fees for services provided during the
Initial Term. Authorized User Fees for each Renewal Term shall
1.11 Term"has the meaning set forth in Secttontl0. _be based on Diio's then-current license fees. At Customer's
1.12 "Terms 'of`Serv'ice" `means the onfrne terms and" ktpbst within seventy-five (75) days of the end of the Term, Diio
conditions related to the use of the Diio Service that are posted on will provide a written schedule of its then-current fees that would
the Site at the "Terms of Service" page and that a user must apply to any Renewal Term.
accept before accessing the Diio Service. 3.2 Additional Fees. Customer understands that Diio incurs
2. Customer Rights and Obligations. costs for changing Authorized Users and agrees that Diio may
2.1 License Grant. Subject to the terms of this Agreement, impose a fee at its then-current rates if Customer changes its
Diio hereby grants Customer anon-exclusive, non-transferable Authorized Users on average more than once per month. In
right and license during the Agreement Term to allow the number addition, fees for additional services such as onsite or remote
of Authorized Users for which Customer has purchased a training, consulting, s enhancement services shall st at shall
subscription to access and use the Diio Service to generate then-current rates for such services. Additionally, Customer shall
Reports solely for Customer's internal business purposes. reimburse Diio monthly o arrears for es reasonable travel,
Customer acknowledges that Diio: (i) has complete and sole telephone, and other out-of-pocket expenses incurred in providing
such services, provided such expenses have been pre-approved
discretion over the selection and arrangement of Content
available on the Diio Service; (ii) can move or delete Content at by Customer. Diio will provide Customer with adequate
documentation for all such expenses.
any time for any reason; and (iii) has made no effort to verify the
accuracy of any Content on the Diio Service. Diio and its 3.3 Payment/Timing. Payments shall be due in accordance
licensors may also make improvements and/or changes to the with the terms set forth in Exhibit B. All amounts are due in
Diio Service or the Content at any time without notice. United States Dollars and are net of any taxes or applicable wire
2.2 Reports. In addition to the foregoing, Customer may transfer fees. Customer agrees that it will be responsible for all
reproduce and publish Reports internally and to Customers sales, use, or services taxes of any kind, with the exception of
clients, provided Customer includes an attribution statement taxes based on Diio's income.
acknowledging Diio's ownership of the Report. This attribution 3.4 Late Payments. If Customer fails to timely pay any
statement shall be in a form and manner prescribed and approved amount due within thirty (30) days of the payment due date: (i)
by Diio. If Diio determines, in its sole discretion, that Customer is Customer shall pay, in addition, interest at the rate of one and one
distributing or publishing any Reports in a manner detrimental to half percent (1Y.%) per month, but not to exceed the maximum
Diio's business, Customer shall immediately cease distributing allowed by law; and (ii) Diio may, at Diio's option, suspend
and/or publishing Reports upon receipt of Diio's written notice. Customer's and its Authorized Users' access to the Diio Service
2.3 Restrictions. Except as expressly authorized in this and, if the delinquency continues for an additional fifteen (15)
Agreement, Customer: (i) will use reasonable efforts to ensure days after the initial suspension date, Diio may, at its option,
that neither the Diio Service, the Diio Content, nor any Reports terminate this Agreement. Fees will continue to accrue during any
are displayed outside of the Site or distributed in any way to any such suspension.
third party; (ii) shall not rent, lease, distribute, transfer, copy, 4. Authorized Users.
reproduce, display, modify, or timeshare the Diio Service,the Diio 4.1 Registration. Upon execution of this Agreement, Diio
Content, the Reports, or any portion thereof; (iii) will take all will provide Customer with instructions on how Authorized Users
reasonable steps to protect the Diio Service and the Site from shall access the Diio Service. Prior to his or her initial access to
unauthorized access or use; (iv) will use best efforts to prevent the Diio Service, each Authorized User: (i) shall register with Diio
third parties from obtaining Passwords; and (v) will immediately as set forth in the registration procedures posted on the Site and
inform Diio of any actual or potential unauthorized access to a (ii) electronically agree to the Terms of Service document on the
Password or to the Diio Service. Diio reserves all rights not Site. All collection and use of Authorized User data submitted
expressly granted in this Agreement. during registration shall be in accordance with Diio's then-current
2.4 Service Levels. Diio will host and maintain the Diio published privacy policy.
Service in accordance with the target service levels described in 4.2 Customer Obligations. Customer agrees to be
Exhibit C. responsible for providing accurate and complete information about
2.5 Support. Diio will provide support for the Diio Service in each Authorized User on registration as reasonably requested by
accordance with the terms of Exhibit C. Diio. Customer agrees to review and update such information at
least quarterly for accuracy. Diio may, in its sole discretion,
terminate the accounts or access rights of any Authorized Users
2
• •
for whom inaccurate or incomplete information was provided OR THE DIIO 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. DIIO MAKES
does not appear on the then-current list of Authorized Users NO OTHER WARRANTIES WITH RESPECT TO THE DIIO
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 DIIO 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 FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES
if 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 longer7. Limitations of Liability.
secure.
4.3 Remedies. Do and its licensors reserve the right to 7.1 CUSTOMER AGREES THAT IN NO EVENT WILL DIIO
Diio
investigate complaints reported violations of this Agreement or OR ITS LICENSORS BE LIABLE TO CUSTOMER OR TO ANY
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
IO
limitation, reporting and providing information of any suspected USE THE DIIO SERVICE, THE SITE, OR THE DI
OF CUSTOMER'S OR ITS AUTHORIZED USERS'
,
unlawful activity to law enforcement officials, regulators, or other CONTENT,
T, OR FOR ANY SPECIAL, INCIDENTAL,
third parties, including disclosing any information necessary or CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES EVEN
appropriate to such persons or entities relating to user profiles, e- IF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
a history, DAMAGES.
mail addresses, usag
e ry, posted materials, IP addresses,and traffic information. Diio and its licensors reserve the right to 7.2 THE CUMULATIVE LIABILITY OF DIIO 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 DIIO
5. Proprietary Rights. All right, title, and interest in and to HEREUNDER.
the Diio Service, the Diio Content, the Reports, the Site, and any 6. 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
interruptions, and losses, including inadvertent loss of data or REMEDY, AND DIIO'S SOLE AND EXCLUSIVE LIABILITY,
WITH RESPECT TO THE INFRINGEMENT BY damage to media, which may give rise to loss or damage. Diio
makes no representations or warranties that the Diio service is SERVICE AND THE DIIO CONTENT OF ANY THIRD PARTY'S
THE DIIO
INTELLECTUAL PROPERTY RIGHTS.
free of bugs or other errors, or that it will operate continuously, or
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,
customers or users against viruses, worms, or other items of a personnel, research, development, or know-how; and (iii)
destructive nature. Customer further agrees that Diio PROVIDES information designated by either party as confidential in writing or,
THE DIIO SERVICE, THE SITE, AND THE DIIO CONTENT ON if disclosed orally, reduced to writing within thirty (30) days.
AN "AS-IS" AND "WHERE-IS" BASIS. EXCEPT FOR THE Notwithstanding the foregoing, "Confidential Information" shall not
TARGET SERVICE LEVELS SET FORTH IN EXHIBIT C, DIIO include information that: (1) is or becomes generally known or
DOES NOT WARRANT THAT THE DIIO SERVICE, THE SITE, available by publication, commercial use, or otherwise through no
fault of the receiving party; (2) is known and has been reduced to
3
• •
tangible form by the receiving party at the time of disclosure and Except for Diio's right to seek injunctive relief to protect its
is not subject to restriction; (3) is independently developed or proprietary rights hereunder, the parties hereby consent and
learned by either party; or(4) is released for publication in writing. submit to the exclusive jurisdiction of the federal and state courts
Each party agrees that it will not, and will ensure that its sitting in the Northern District of California for the resolution of any
employees, agents, and contractors will not, make use of, dispute arising out of this Agreement. The English language text
disseminate, or in any way disclose any Confidential Information of this Agreement shall prevail over any translation into any other
of the other party to any person, firm, or business, except for any language. Except for the obligation to make payments, non-
purpose the disclosing party may hereafter authorize in writing. performance of either party shall be excused to the extent the
Each party agrees that it will treat all Confidential Information with performance is rendered impossible by strike, fire, flood,
the same degree of care as it accords to its own Confidential governmental acts or orders or restrictions, failure of suppliers, or
Information, and each party represents that it exercises any other reason where failure to perform is beyond the
reasonable care to protect its own Confidential Information. reasonable control of and is not caused by the negligence of the
10. Tern. The term of this Agreement shall begin on the non-performing party. Any failure by a party at any time or from
Effective Date and shall continue for the period set forth in Exhibit time to time to enforce or require strict compliance with any term
B, unless earlier terminated as set forth below(the"Initial Term"). or condition of this Agreement will not constitute a waiver of such
There is no Renewal Tern for this agreement. The Initial Term term or condition. No waiver will be enforceable unless embodied
may be referred to in this Agreement as the"Term." in a writing signed by the party charged with such waiver. Except
as explicitly provided herein, this Agreement may not be modified
it. Termination. Either party may terminate this Agreement except by a written instrument signed by both parties. In the
upon thirty (30) days' written notice of a material breach of this event of the invalidity, in whole or in part, of any term of this
Agreement by the other party if such breach is not cured within Agreement, the parties agree that such invalidity shall not affect
such thirty (30) day period; provided, however, that any willful the validity of any other term of this Agreement and that such term
unauthorized access, use, copying, disclosure, distribution, or shall be subject to partial enforcement to the extent permitted
sublicensing of the Diio Service, the Diio Content, Reports, or the under applicable law. Any notice required or permitted to be sent
Site by Customer or any Authorized User will be deemed a under this Agreement shall be delivered by hand, by overnight
material breach of this Agreement that cannot be cured. In courier, or by registered mail, return receipt requested, to the
addition to the foregoing, either party may terminate this address of the parties set forth in this Agreement or to such other
Agreement immediately upon the insolvency, filing for bankruptcy address of the parties designated in writing in accordance with
(whether voluntary or involuntary), receivership, or general this subsection. This Agreement is not assignable by Customer
assignment for the benefit of creditors of the other party. Upon without the prior written consent of Diio, which consent shall not
the expiration or earlier termination of the Agreement: (i) each be unreasonably withheld. Any attempt at assignment by
party will return to the other party any Confidential Information of Customer, including by means of merger, acquisition, operation of
the other party; (ii) all fees for services rendered prior to the law, or otherwise,without such consent shall be null and void and
effective date of termination shall be immediately due and of no force and effect. Subject to the foregoing, this Agreement
payable; and (iii) Customer and each Authorized User will no shall inure to the benefit of and be binding upon the parties, their
longer be provided access to the Diio Service or the Site. successors, and assigns. Sections 1, 3 (with respect to any fees
12. Miscellaneous. This Agreement shall be governed by generated prior to the effective date of termination), and 5 through
the laws of the State of California, without reference to conflict of 12 shall survive the expiration of this Agreement. This
laws principles. Customer acknowledges that the Diio Service Agreement, the Terms of Service, and the Exhibits attached
and the Diio Content may be subject to the export controls laws hereto set forth the entire understanding and agreement between
and regulations of the United States and other jurisdictions. Customer and Diio and supersede all prior or contemporaneous
Customer, for itself and its Authorized Users, agrees to faithfully proposals or communications, oral or written, between the parties
comply with all such laws and regulations, and agrees to hold Diio relating to the subject matter of the Agreement. In the event of
entirely harmless from and against any liability, costs, damages, any conflict between this Agreement, the Terms of Service, and
or expenses of any kind, including without limitation attorneys' the Exhibits,this Agreement shall be controlling.
fees, related to Customer's breach of such laws and regulations.
[END OF TERMS AND CONDITIONS]
4
EXHIBIT A
DESCRIPTION OF DIIO SERVICE
The Diio Service includes the following data,tools and information:
• Woddwide Aidine Schedule Data
• U.S. Department of Transportation(DOT) Origin and Destination(O&D)Data(DB1 B)
• All U.S. users must complete their Certification to Protect Restricted Release Aviation Economic
Information, which is available from Diio or the Office of Airline Information at the DOT's Bureau of
Transportation Statistics. Non-U.S. users do not have access to international O&D data, but may access
U.S. domestic O&D data.
• U.S. DOT Onboard Data(T1DO)
• U.S. DOT Form 41 Data
• Market Size Data
• Miscellaneous Tools
• Airline Performance tool
• Segment P&L tool
• 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
EXHIBIT B
AUTHORIZED USER FEES
Authorized User Fees for Initial Term:
NuEnhec of Authorized Users Total Authorized User fee Monthly Authorized User Fee
4 $18,000 $1,500
Initial Term: One(1)year
Payment Terms: Diio shall issue invoices for the Authorized User Fees monthly, in advance. All fees shall be due
within thirty (30)days from the invoice date. Payments made by wire transfer should include the wire transfer fee of
the outgoing bank, in addition to the Authorized User Fee.
Invoicing Information:
Dip Contact Information for involdng
Name: Eva Cooper
Address: Diio, LLC Phone: (703) 748-5311
P.O. Box 449 Fax: (703)842-8324
Dunn Loring,VA 22027-0449 E-Mail: eva.coo er diio.net
Customers primary contact, Mark Kiehl,will also handle invoicing,with the contact info given at the beginning of this
Agreement.
tot To Exceed
Without The Express Written
Authorization Of The City
Manager.
6
• M.
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(7Y:) 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 (366)
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
I
i •
CITY OEPAL SP F M RINGS
SUBSCRIPTION AGREEMENT 2011 APR 25 AM Be 54
This Subscription Agreement(the"Agreement") is effective as of the date set forth b f#f#?ffVPdate")between:
"Diio": Diio, LLC, a California limited liability company
497 Bird Avenue, Los Gatos, California 95032
Phone: (408)399-0570 Fax: (408)354-0907 E-Mail: legal.notices(a)diio.net
And
"Customer": Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite OFC, Palm Springs, California 92263
Phone: (760)318-3807 Fax: (760)318-3815 E-Mail: Mark.Kiehi(a)oalmsoringsca.00v
Effective Date: July 1�, 2011 to June 30th, 2012
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 PALM SPRINGS INTERNATIONAL AIRPORT
Signature �Signatu�re _.?
Jordan Kayloe David H. Ready
Name Name
Senior Vice President City Manager
Title Title
oe
Not To Exceed $ 6oa,
Without The Express Written
y
TERMS AND CONDITIONS Manager.
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 "apgDat," that Service by the number of Authorized Users specified in Exhibit B.
provides standard and customized reports for travel and airline 1.5 "Confidential Information"has the meaning set forth in
industry data as more specifically described in Exhibit A and that: Section 9.
(i) contains the Diio Content; and (ii) is hosted and served on the 1.6 "Initial Term"has the meaning set forth in Section 10.
Site.
1
FIR i
1.7 "PassWW&Qxnt6s u iqule!4ssword assigned to 2.6 Identification of Customer. Customer agrees that Diio
each Authorized User by Diio that permits access to the Diio may name Customer as a user of the Diio Service in its marketing
Service. materials and on its website without payment of any separate
1.8 "Renewal Term' has theTineaning set forth in Section fees. If Customer has made favorable comments about Diio or
10 the Diio Service, Customer agrees that Diio may reproduce these
comments in its marketing materials or on its website. Diio may
1.9 "Reports" means individual data analysis reports, also permit its authorized partners to name Customer as a user or
including, without limitation, maps, charts, and graphs, generated reproduce favorable comments in their marketing materials or on
by the Diio Service pursuant to data parameters requested by an their websites.
Authorized User.
3. Fees and Payment.
1.10 "Site" means the Diio Internet websites hosted and
maintained by or on behalf of Diio, and any successor sites 3.1 Authorized User Fees. Customer agrees to pay Diio the
thereto,at which Authorized Users may access the Diio Service. applicable Authorized User Fees for services provided during the
Initial Tenn. Authorized User Fees for each Renewal Term shall
1.11 "Term"has the meaning set forth in Section 10. be based on Diio's then-current license fees. At Customers
1.12 "Terms of Service" means the online terms and request within seventy-five(75)days of the end of the Term, Diio
conditions related to the use of the Diio Service that are posted on will provide a written schedule of its then-current fees that would
the Site at the "Terms of Service" page and that a user must apply to any Renewal Term.
accept before accessing the Diio Service. 3.2 Additional Fees. Customer understands that Diio incurs
2. Customer Rights and Obligations. costs for changing Authorized Users and agrees that Diio may
2.1 License Grant. Subject to the terms of this Agreement, impose a fee at its then-current rates if Customer changes its
Diio hereby grants Customer a non-exclusive, non-transferable Authorized Users on average more than once per month. In
right and license Burin the addition, fees for additional services such as onsite or remote
g g Agreement Term to allow the number training, consulting, or enhancement services shall be at Diio's
of Authorized Users for which Customer has purchased a then-current rates for such services. Additionally, Customer shall
subscription to access and use the Diio Service to generate reimburse Diio monthly in arrears for Diio's reasonable travel,
Reports solely for Customer's internal business purposes. telephone, and other out-of-pocket expenses incurred in providing
Customer acknowledges that Diio: (i) has complete and sole such services, provided such expenses have been pre-approved
discretion over the selection and arrangement of Content by Customer. Diio will provide Customer with adequate
available on the Diio Service; (ii) can move or delete Content at documentation for all such expenses.
any time for any reason; and (III)has made no effort to verify the
accuracy of any Content on the Diio Service. Diio and its 3.3 Payment/Timing. Payments shall be due in accordance
licensors may also make improvements and/or changes to the with the terms set forth in Exhibit B. All amounts are due in
Diio Service or the Content at any time without notice. United States Dollars and are net of any taxes or applicable wire
2.2 Reports. In addition to the foregoing, Customer may transfer fees. Customer agrees that it will be responsible for all
, sales, use, or services taxes of any kind, with the exception of
reproduce and publish. Reports internally and to Customer's
clients, provided Customer includes an attribution statement taxes based on Diio's income.
acknowledging Diio's ownership of the Report This attribution 3.4 Late Payments. If Customer fails to timely pay any
statement shall be in a form and manner prescribed and approved amount due within thirty (30) days of the payment due date: (i)
by Diio. If Diio determines, in its sole discretion,that Customer is Customer shall pay,in addition,interest at the rate of one and one
distributing or publishing any Reports in a manner detrimental to half percent (1%:%) per month, but not to exceed the maximum
Diio's business, Customer shall immediately cease distributing allowed by law; and (ii) Diio may, at Diio's option, suspend
and/or publishing Reports upon receipt of Diio's written notice. Customer's and its Authorized Users' access to the Diio Service
2.3 Restrictions. Except as expressly authorized in this and, if the delinquency continues for an additional fifteen (15)
Agreement, Customer: (i) will use reasonable efforts to ensure days after the initial suspension date, Diio may, at its option,
that neither the Diio Service, the Diio Content, nor any Reports terminate this Agreement. Fees will continue to accrue during any
are displayed outside of the Site or distributed in any way to any such suspension.
third party; (ii) shall not rent, lease, distribute, transfer, copy, 4. Authorized Users.
reproduce, display, modify,or timeshare the Diio Service,the Diio 4.1 Registration. Upon execution of this Agreement, Diio
Content, the Reports, or any portion thereof; (III) will take all will provide Customer with instructions on how Authorized Users
reasonable steps to protect the Diio Service and the Site from shall access the Diio Service. Prior to his or her initial access to
unauthorized access or use; (iv) will use best efforts to prevent the Diio Service, each Authorized User. (i) shall register with Diio
third parties from obtaining Passwords; and (v) will immediately as set forth in the registration procedures posted on the Site and
inform Diio of any actual or potential unauthorized access to a (ii) electronically agree to the Terms of Service document on the
Password or to the Diio Service. Diio reserves all rights not Site. All collection and use of Authorized User data submitted
expressly granted in this Agreement. during registration shall be in accordance with Diio's then-current
2.4 Service Levels. Diio will host and maintain the Diio published privacy policy.
Service in accordance with the target service levels described in 4.2 Customer Obligations. Customer agrees to be
Exhibit C. responsible for providing accurate and complete information about
2.5 Support. Diio will provide support for the Diio Service in each Authorized User on registration as reasonably requested by
accordance with the terms of Exhibit C. Diio. Customer agrees to review and update such information at
least quarterly for accuracy. Diio may, in its sole discretion,
terminate the accounts or access rights of any Authorized Users
2
for whom inaccurate or incomplete information was provided OR THE DIIO 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. DIIO MAKES
does not appear on the then-current list of Authorized Users NO OTHER WARRANTIES WITH RESPECT TO THE DIIO
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 DIIO 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 FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES
if 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.
7.1 CUSTOMER AGREES THAT IN NO EVENT WILL DIIO
4.3 Remedies. Diio and its licensors reserve the right to 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 RESULTS OF CUSTOMER'S OR ITS AUTHORIZED USERS'
and to take any action they deem appropriate including, without USE OF THE DIIO SERVICE, THE SITE, OR THE DIIO
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 DIIO 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 DIIO 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 Terns 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 usemame. EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO DIIO
5. Proprietary Rights. All right,title, and interest in and to
HEREUNDER.
the Diio Service, the Diio Content, the Reports, the Site, and any $" 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
LIMITED REMEDY IS CUSTOMER'S SOLE AND EXCLUSIVE
of some human and machine errors, omissions, delays,
interruptions, and losses, including inadvertent loss of data or REMEDY, AND DIIO'S SOLE AND EXCLUSIVE LIABILITY,
WITH RESPECT TO THE INFRINGEMENT BY THE DIIO
damage to media, which may give rise to loss or damage. Diio SERVICE AND THE DIIO CONTENT OF ANY THIRD PARTY'S
makes no representations or warranties that the Diio service is INTELLECTUAL PROPERTY RIGHTS.
free of bugs or other errors, or that it will operate continuously, or
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,
customers or users against viruses, worths, or other items of a personnel, research, development, or know-how, and (iii)
destructive nature. Customer further agrees that Diio PROVIDES information designated by either party as confidential in writing or,
THE DIIO SERVICE, THE SITE, AND THE DIIO CONTENT ON if disclosed orally, reduced to writing within thirty (30) days.
AN "AS-IS" AND "WHERE-IS" BASIS. EXCEPT FOR THE Notwithstanding the foregoing,"Confidential Information"shall not
TARGET SERVICE LEVELS SET FORTH IN EXHIBIT C, DIIO include information that: (1) is or becomes generally known or
DOES NOT WARRANT THAT THE DIIO SERVICE, THE SITE, available by publication, commercial use,or otherwise through no
fault of the receiving party; (2)is known and has been reduced to
3
tangible form by the receiving party at the time of disclosure and Except for Diio's right to seek injunctive relief to protect its
is not subject to restriction; (3) is independently developed or proprietary rights hereunder, the parties hereby consent and
learned by either party;or(4)is released for publication in writing. submit to the exclusive jurisdiction of the federal and state courts
Each party agrees that it will not, and will ensure that its sitting in the Northern District of California for the resolution of any
employees, agents, and contractors will not, make use of, dispute arising out of this Agreement. The English language text
disseminate, or in any way disclose any Confidential Information of this Agreement shall prevail over any translation into any other
of the other party to any person, firth, or business, except for any language. Except for the obligation to make payments, non-
purpose the disclosing party may hereafter authorize in writing. performance of either party shall be excused to the extent the
Each party agrees that it will treat all Confidential Information with performance is rendered impossible by strike, fire, flood,
the same degree of care as it accords to its own Confidential governmental acts or orders or restrictions, failure of suppliers, or
Information, and each party represents that it exercises any other reason where failure to perform is beyond the
reasonable care to protect its own Confidential Information. reasonable control of and is not caused by the negligence of the
10. Term. The term of this Agreement shall begin on the non-performing party. Any failure by a party at any time or from
Effective Date and shall continue for the period set forth in Exhibit time to time to enforce or require strict compliance with any term
B,unless earlier terminated as set forth below(the"Initial Term"). or condition of this Agreement will not constitute a waiver of such
There is no Renewal Tenn for this agreement. The Initial Term term or condition. No waiver will be enforceable unless embodied
may be referred to in this Agreement as the"Term." in a writing signed by the party charged with such waiver. Except
as explicitly provided herein,this Agreement may not be modified
11. Termination. Either party may terminate this Agreement except by a written instrument signed by both parties. In the
upon thirty (30) days' written notice of a material breach of this event of the invalidity, in whole or in part, of any term of this
Agreement by the other party if such breach is not cured within Agreement, the parties agree that such invalidity shall not affect
such thirty (30) day period; provided, however, that any willful the validity of any other term of this Agreement and that such term
unauthorized access, use, copying; disclosure, distribution, or shall be subject to partial enforcement to the extent permitted
sublicensing of the Diio Service,the Diio Content, Reports,or the under applicable law. Any notice required or permitted to be sent
Site by Customer or any Authorized User will be deemed a under this Agreement shall be delivered by hand, by overnight
material breach of this Agreement that cannot be cured. In courier, or by registered mail, return receipt requested, to the
addition to the foregoing, either party may terminate this address of the parties set forth in this Agreement or to such other
Agreement immediately upon the insolvency, filing for bankruptcy address of the parties designated in writing in accordance with
(whether voluntary or involuntary), receivership, or general this subsection. This Agreement is not assignable by Customer
assignment for the benefit of creditors of the other party. Upon without the prior written consent of Diio, which consent shall not
the expiration or earlier termination of the Agreement: (i) each be unreasonably withheld. Any attempt at assignment by
party will return to the other party any Confidential Information of Customer,including by means of merger,acquisition, operation of
the other party; (ii) all fees for services rendered prior to the law,or otherwise,without such consent shall be null and void and
effective date of termination shall be immediately due and of no force and effect. Subject to the foregoing, this Agreement
payable; and (iii) Customer and each Authorized User will no shall inure to the benefit of and be binding upon the parties, their
longer be provided access to the Diio Service or the Site. successors, and assigns. Sections 1, 3(with respect to any fees
12. Miscellaneous. This Agreement shall be governed by generated prior to the effective date of termination), and 5 through
the laws of the State of California, without reference to conflict of 12 shall survive the expiration of this Agreement. This
laws principles. Customer acknowledges that the Diio Service Agreement, the Terms of Service, and the Exhibits attached
and the Diio Content may be subject to the export controls laws hereto set forth the entire understanding and agreement between
and regulations of the United States and other jurisdictions. Customer and Diio and supersede all prior or contemporaneous
Customer, for itself and its Authorized Users, agrees to faithfully proposals or communications, oral or written, between the parties
comply with all such laws and regulations,and agrees to hold Diio relating to the subject matter of the Agreement. In the event of
entirely harmless from and against any liability, costs, damages, any conflict between this Agreement, the Terms of Service, and
or expenses of any kind, including without limitation attorneys' the Exhibits,this Agreement shall be controlling.
fees, related to Customer's breach of such laws and regulations.
(END OF TERMS AND CONDITIONS)
4
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(1381 B)
• All U.S. users must complete their Certification to Protect Restricted Release Aviation Economic
Information, which is available from Diio or the Office of Airline Information at the DOT's Bureau of
Transportation Statistics. Non-U.S. users do not have access to international O&D data, but may access
U.S.domestic O&D data.
• U.S. DOT Onboard Data(T100)
• U.S. DOT Form 41 Data
• Market Size Data
• Miscellaneous Tools
• Airline Performance tool
• Segment P&L tool
• 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
• •
EXHIBIT B
AUTHORIZED USER FEES
Authorized User Fees for Initial Term:
4 $18,000 $1,500
Initial Term:One(1)year
Payment Terms: Diio shall issue invoices for the Authorized User Fees monthly, in advance. All fees shall be due
within thirty(30)days from the invoice date. Payments made by wire transfer should include the wire transfer fee of
the outgoing bank,in addition to the Authorized User Fee.
Invoicing Information:
z€�
Name: Eva Cooper
Address: Diio,LLC Phone: (703)748-5311
P.O.Box 449 Fax: (703)842-8324
Dunn Lorna.VA 22027-0449 E-Mail: eva.co a diio.net
Customer's primary contact, Mark Kiehl,will also handle invoicing,with the contact info given at the beginning of this
Agreement.
6
• s
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(71/2)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) Customers 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 smalls 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
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
497 Bird Avenue, Los Gatos, California 95032
Phone: (408) 399-0570 Fax: (408) 354-0907 E-Mail: legal.notices(a.)diio.net
And
"Customer": Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite OFC, Palm Springs, California 92263
Phone: (760)318-3807 Fax: (760) 318-3815 E-Mail: Mark.Kiehip--palmsprings-ca.gov
Effective Date: July 1t, 2010 to June 301", 2011
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 PALM SPRINGS INTERNATIONAL AIRPORT
Signature Signature
Brian Kulman David H. Ready
Name Name
Chief Technical Officer City Manager
Title Title Not To Exceed $
Without The Expres Written
Authorization Of The City
Manager.
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 "apgDat," that Service by the number of Authorized Users specified in Exhibit B.
provides standard and customized reports for travel and airline 1.5 "Confidential Information"has the meaning set forth in
industry data as more specifically described in Exhibit A and that: Section 9.
(i)contains the Diio Content; and (ii) is hosted and served on the 1.6 "Initial Term"has the meaning set forth in Section 10.
Site.
1
1.7 "Password" means the unique password assigned to 2.6 Identification of Customer. Customer agrees that Diio
each Authorized User by Diio that permits access to the Diio may name Customer as a user of the Diio Service in its marketing
Service. materials and on its website without payment of any separate
1.8 "Renewal Term" has the meaning set forth in Section fees. If Customer has made favorable comments about Diio or
10. the Diio Service, Customer agrees that Diio may reproduce these
comments in its marketing materials or on its website. Diio may
1.9 "Reports" means individual data analysis reports, also permit its authorized partners to name Customer as a user or
including, without limitation, maps, charts, and graphs, generated reproduce favorable comments in their marketing materials or on
by the Diio Service pursuant to data parameters requested by an their websites.
Authorized User.
3. Fees and Payment.
1.10 "Site" means the Diio Internet websites hosted and
maintained by or on behalf of Diio, and any successor sites 3.1 Authorized User Fees. Customer agrees to pay Diio the
thereto, at which Authorized Users may access the Diio Service. applicable Authorized User Fees for services provided during the
Initial Term. Authorized User Fees for each Renewal Term shall
1.11 "Term"has the meaning set forth in Section 10. be based on Diio's then-current license fees. At Customer's
1.12 "Terms of Service" means the online terms and request within seventy-five (75)days of the end of the Term, Diio
conditions related to the use of the Diio Service that are posted on will provide a written schedule of its then-current fees that would
the Site at the "Terms of Service" page and that a user must apply to any Renewal Term,
accept before accessing the Diio Service. 12 A ditio al Fees. Customer understands that Diio incurs
2. Customer Rights and Obligations. costs for changing Authorized Users and agrees that Diio may
2.1 License Grant. Subject to the terms of this Agreement, impose a fee at its then-current rates if Customer changes its
Diio hereby grants Customer a non-exclusive, non-transferable Authorized Users on average more than once per month. In
right and license during the Agreement Term to allow the number addition, fees for additional services such as onsite or remote
of Authorized Users for which Customer has purchased a training, consulting, or enhancement services shall be at Diio's
subscription to access and use the Diio Service to generate then-current rates for such services. Additionally, Customer shall
Reports solely for Customer's internal business purposes. reimburse Diio monthly in arrears for Diio's reasonable travel,
Customer acknowledges that Diio: (i) has complete and sole telephone, and other out-of-pocket expenses incurred in providing
discretion over the selection and arrangement of Content such services, provided such expenses have been pre-approved
available on the Diio Service; O a can move or delete Content at by Customer. Diio will provide Customer with adequate
any time for any reason; and (III) has made no effort to verify the documentation for all such expenses.
accuracy of any Content on the Diio Service. Diio and its 3.3 Payment/Timing. Payments shall be due in accordance
licensors may also make improvements and/or changes to the with the terms set forth in Exhibit B. All amounts are due in
Diio Service or the Content at any time without notice. United States Dollars and are net of any taxes or applicable wire
2.2 Reports. In addition to the foregoing, Customer may transfer fees. Customer agrees that it will be responsible for,all
reproduce and publish Reports internally and to Customer's sales, use, or services taxes of any kind, with the exception of
taxes based on Diio's income.
clients, provided Customer includes an attribution statement
acknowledging Diio's ownership of the Report. This attribution 3.4 Late Pa m nt . If Customer fails to timely pay any
statement shall be in a form and manner prescribed and approved amount due within thirty (30) days of the payment due date: (i)
by Diio. If Diio determines, in its sole discretion,that Customer is Customer shall pay, in addition, interest at the rate of one and one
distributing or publishing any Reports in a manner detrimental to half percent (1'/s%) per month, but not to exceed the maximum
Diio's business, Customer shall immediately cease distributing allowed by law; and (ii) Diio may, at Diio's option, suspend
and/or publishing Reports upon receipt of Diio's written notice. Customer's and its Authorized Users' access to the Diio Service
2.3 Restrictions. Except as expressly authorized in this and, if the delinquency continues for an additional fifteen (15)
Agreement, Customer: (i) will use reasonable efforts to ensure days after the initial suspension date, Diio may, at its option,
that neither the Diio Service, the Diio Content, nor any Reports terminate this Agreement. Fees will continue to accrue during any
are displayed outside of the Site or distributed in any way to any such suspension.
third party; (H) shall not rent, lease, distribute, transfer, copy, 4. Authorized Users.
reproduce, display, modify, or timeshare the Diio Service,the Diio 4.1 Registration. Upon execution of this Agreement, Diio
Content, the Reports, or any portion thereof; (iii) will take all will provide Customer with instructions on how Authorized Users
reasonable steps to protect the Diio Service and the Site from shall access the Diio Service. Prior to his or her initial access to
unauthorized access or use; (iv) will use best efforts to prevent the Diio Service, each Authorized User; (i) shall register with Diio
third parties from obtaining Passwords; and (v) will immediately as set forth in the registration procedures posted on the Site and
inform Diio of any actual or potential unauthorized access to a (H) electronically agree to the Terms of Service document on the
Password or to the Diio Service. Diio reserves all rights not Site. All collection and use of Authorized User data submitted
expressly granted in this Agreement. during registration shall be in accordance with Diio's then-current
2.4 Service Levels. Diio will host and maintain the Diio published privacy policy.
Service in accordance with the target service levels described in 4_2 Customer Obligations. Customer agrees to be
Exhibit C. responsible for providing accurate and complete information about
2.5 Support. Diio will provide support for the Diio Service in each Authorized User on registration as reasonably requested by
accordance with the terms of Exhibit C. Diio. Customer agrees to review and update such information at
least quarterly for accuracy. Diio may, in its sole discretion,
terminate the accounts or access rights of any Authorized Users
2
for whom inaccurate or incomplete information was provided OR THE DIIO 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. DIIO MAKES
does not appear on the then-current list of Authorized Users NO OTHER WARRANTIES WITH RESPECT TO THE DIIO
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 DIIO 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 FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES
if 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.
7.1 CUSTOMER AGREES THAT IN NO EVENT WILL DIIO
4.3 Remedies. Diio and its licensors reserve the right to 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 RESULTS OF CUSTOMER'S OR ITS AUTHORIZED USERS'
and to take any action they deem appropriate including, without USE OF THE 0I10 SERVICE, THE SITE, OR THE ❑I10
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 DIIO 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 DIIO 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 DIIO
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 ANDLIMITED REMEDY IS CUSTOMER'S SOLE AND EXCLUSIVE
of some human and machine errors, omissions, delays, REMEDY, AND DI10'S SOLE AND EXCLUSIVE LIABILITY,
interruptions, and losses, including inadvertent loss of data or WITH RESPECT TO THE INFRINGEMENT BY THE DIIO
damage to media, which may give rise to loss or damage. Diio SERVICE AND THE DIIO CONTENT OF ANY THIRD PARTY'S
makes no representations or warranties that the Diio service is INTELLECTUAL PROPERTY RIGHTS.
free of bugs or other errors, or that it will operate continuously, or
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,
customers or users against viruses, worms, or other items of a personnel, research, development, or know-how; and (iii)
destructive nature. Customer further agrees that Diio PROVIDES information designated by either party as confidential in writing or,
THE DIIO SERVICE, THE SITE, AND THE DIIO CONTENT ON if disclosed orally, reduced to writing within thirty (30) days.
AN "AS-IS" AND "WHERE-IS" BASIS. EXCEPT FOR THE Notwithstanding the foregoing, "Confidential Information"shall not
TARGET SERVICE LEVELS SET FORTH IN EXHIBIT C, DIIO include information that: (1) is or becomes generally known or
DOES NOT WARRANT THAT THE DIIO SERVICE, THE SITE, available by publication, commercial use, or otherwise through no
fault of the receiving party; (2) is known and has been reduced to
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tangible form by the receiving party at the time of disclosure and Except for Diio's right to seek injunctive relief to protect its
is not subject to restriction; (3) is independently developed or proprietary rights hereunder, the parties hereby consent and
learned by either party; or(4)is released for publication in writing. submit to the exclusive jurisdiction of the federal and state courts
Each party agrees that it will not, and will ensure that its sitting in the Northern District of California for the resolution of any
employees, agents, and contractors will not, make use of, dispute arising out of this Agreement. The English language text
disseminate, or in any way disclose any Confidential Information of this Agreement shall prevail over any translation into any other
of the other party to any person, firm, or business, except for any language. Except for the obligation to make payments, non-
purpose the disclosing party may hereafter authorize in writing. performance of either party shall be excused to the extent the
Each party agrees that it will treat all Confidential Information with performance is rendered impossible by strike, fire, flood,
the same degree of care as it accords to its own Confidential governmental acts or orders or restrictions, failure of suppliers, or
Information, and each party represents that it exercises any other reason where failure to perform is beyond the
reasonable care to protect its own Confidential Information. reasonable control of and is not caused by the negligence of the
10. Term. The term of this Agreement shall begin on the non-performing party. Any failure by a party at any time or from
Effective Date and shall continue for the period set forth in Exhibit time to time to enforce or require strict compliance with any term
B, unless earlier terminated as set forth below(the"Initial Term"). or condition of this Agreement will not constitute a waiver of such
There is no Renewal Term for this agreement. The Initial Term term or condition. No waiver will be enforceable unless embodied
may be referred to in this Agreement as the"Term." in a writing signed by the party charged with such waiver, Except
as explicitly provided herein, this Agreement may not be modified
11. Termination. Either party may terminate this Agreement except by a written instrument signed by both parties. In the
upon thirty (30) days' written notice of a material breach of this event of the invalidity, in whole or in part, of any term of this
Agreement by the other party if such breach is not cured within Agreement, the parties agree that such invalidity shall not affect
such thirty (30) day period; provided, however, that any willful the validity of any other term of this Agreement and that such term
unauthorized access, use, copying, disclosure, distribution, or shall be subject to partial enforcement to the extent permitted
sublicensing of the Diio Service, the Diio Content, Reports, or the under applicable law. Any notice required or permitted to be sent
Site by Customer or any Authorized User will be deemed a under this Agreement shall be delivered by hand, by overnight
material breach of this Agreement that cannot be cured. In courier, or by registered mail, return receipt requested, to the
addition to the foregoing, either party may terminate this address of the parties set forth in this Agreement or to such other
Agreement immediately upon the insolvency, filing for bankruptcy address of the parties designated in writing in accordance with
(whether voluntary or involuntary), receivership, or general this subsection. This Agreement is not assignable by Customer
assignment for the benefit of creditors of the other party. Upon without the prior written consent of Diio, which consent shall not
the expiration or earlier termination of the Agreement: (i) each be unreasonably withheld. Any attempt at assignment by
party will return to the other party any Confidential Information of Customer, including by means of merger, acquisition, operation of
the other party; (1i) all fees for services rendered prior to the law,or otherwise,without such consent shall be null and void and
effective date of termination shall be immediately due and of no force and effect. Subject to the foregoing, this Agreement
payable; and (iii) Customer and each Authorized User will no shall inure to the benefit of and be binding upon the parties, their
longer be provided access to the Diio Service or the Site. successors, and assigns. Sections 1, 3 (with respect to any fees
12. Miscellaneous. This Agreement shall be governed by generated prior to the effective date of termination),and 5 through
the laws of the State of California, without reference to conflict of 12 shall survive the expiration of this Agreement. This
laws principles. Customer acknowledges that the Diio Service Agreement, the Terms of Service, and the Exhibits attached
and the Diio Content may be subject to the export controls laws hereto set forth the entire understanding and agreement between
and regulations of the United States and other jurisdictions. Customer and Diio and supersede all prior or contemporaneous
Customer, for itself and its Authorized Users, agrees to faithfully proposals or communications, oral or written, between the parties
comply with all such laws and regulations, and agrees to hold Diio relating to the subject matter of the Agreement. In the event of
entirely harmless from and against any liability, costs, damages, any conflict between this Agreement, the Terms of Service, and
or expenses of any kind, including without limitation attorneys' the Exhibits,this Agreement shall be controlling.
fees, related to Customer's breach of such laws and regulations.
[END OF TERMS AND CONDITIONS]
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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(DB1B)
• All U.S. users must complete their Certification to Protect Restricted Release Aviation Economic
Information, which is available from Diio or the Office of Airline Information at the DOTS Bureau of
Transportation Statistics. Non-U.S. users do not have access to international O&D data, but may access
U.S.domestic O&D data.
• U.S.DOT Onboard Data(T100)
• U.S.DOT Form 41 Data
• Market Size Data
• Miscellaneous Tools
• Airline Performance tool
• Segment P&L tool
• 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
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EXHIBIT B
AUTHORIZED USER FEES
Authorized User Fees for Initial Tenn:
Number of Authorized Users Total Authorized User Fee Monthly_Authorized User Fee
4 $18,000 $1,500
Initial Penn: One(1)year
Payment Terms: Diio shall issue invoices for the Authorized User Fees monthly, in advance. All fees shall be due
within thirty(30) days from the invoice date. Payments made by wire transfer should include the wire transfer fee of
the outgoing bank, in addition to the Authorized User Fee.
Invoicing Information:
Diio Contact Information for Invoicing
Name: Eva Cooper
Address: Diio, LLC Phone: (703)748-5311
P.O. Box 449 Fax: (703)842-8324
Dunn Loring,VA 22027-0449 E-Mail: eva.coo er diio.net
Customer's primary contact, Mark Kiehl,will also handle invoicing,with the contact info given at the beginning of this
Agreement.
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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 govemmental 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'/2) 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 022ration minus Sqrvice 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.
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