HomeMy WebLinkAbout05492 - AVIATION DATA GROUP LLC SUBSCRIPTION AGR DOCUMENT TRACKING
Page:1
Report: One Document Detail June 18,2009
Condition: Document Number a5492,
Document# Description Approval Date Expiration Date Closed Date
A5492 Subscription agreemenl: 0610612007 06130/2009
Company Name: Aviation Data Group LLC
Address:
Contact: Brian Kulman
Group: AIRPORT Contract Amt. Total Paid Balance
Service: In File $18,000 00 $18,000,00
xRef: BRIAN KIDD (760)318.3815
Ins.Status: Certificate and Policies are OK
Document Tracking Items: Due Completed Trackina Amount Amount
Curie Item Description, Date Date Date Added Paid
kdh CM signed and provided our dept a copy FY 2007 0610612007
-08
kdh under$25k-CM may authorize 0610612007
kdh CM signed&provided to our dept-FY 2008.09 0511612008 $18,000.00
kdh per Janet close on 06-30.2009 0411412009
"""END OF REPORT"
APGDAT
---- - -- -- --- ---- SUBSCRIPTION AGREEMENT ---------'--
This Subscription Agreement (the"Agreement") is effective as of the date set forth below (the "Effective Date") between:
"ADG": Aviation Data Group, 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( aoonet.corri
and
"Customer": Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite OFC, Palm Springs, California 92253
Phone: (760)318-3807 Fax: (760) 318-3815 E-Mail: Mark Kiehl(d),palmsprings-ca.gov
Effective Date: July 1s`, 2008 to June 301h. 2009
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, ADG 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.
AVIATION DATA GROUP, LLG PALM SPRINGS INTERNATIONAL AIRPORT
Signature Signature J�
Brian Kulman David H. Ready
Name Name
Chief Technical Officer City Manager
Title Title
Not To Exceed $lam o v
Without The Express Written
Authorization Of The City
—MI —
TERMS AND CONDITIONS
1, Definitions. contains the ADG Content; and (ii) is hosted and served on the
1.1 "ADG Content" means the proprietary information, Site.
databases, reports, maps, charts, graphs, tools, and other content 1.3 "Authorized User" means a Customer employee who
which are made available to Customer and each Authorized User has received a valid Password from ADG and has accepted the
through the ADG Service. Terms of Service.
1.2 "ADG Service" means the ADG proprietary Internet- 1A "Authorized User Fee" means the fee described in
based report generating service, and any updates and Exhibit B, which may be changed by ADG from time to time, that
enhancements thereto, currently referred to as "APGDat," that is due from Customer for each Authorized User license issued
provides standard and customized reports for travel and airline under this Agreement,
industry data as more specifically described in Exhibit A (which 1.5 "Confidential Information"has the meaning set forth in
ADG may change from time to time in its discretion) and that: (i) Section 9
1.6 "Initial Term" has the meaning set forth in Section 10.
1
1.7 "Password" means the unique password assigned to ADG's reasonable travel, telephone and other out-of-packet
each Authorized User by ADG which permits access to the ADG expenses incurred in providing such services, provided such
Service. expenses have been pre-approved by Customer. ADG will
��----"'Renewal e�rm'lias-the meaning set forth in Section provide Customcrwith—adequaYedtscL7nl�ntaLi n order
10, expenses.
1.9 "Reports" means individual data analysis reports, 3.3 Payment(Timing,. Payments shall be due in accordance
including, without limitation, maps, charts, and graphs, generated with the terms set forth in Exhibit B. All amounts are due in
by the ADG Service pursuant to data parameters requested by an United States Dollars and are net of any taxes or applicable wire
Authorized User, transfer fees. Customer agrees that it will be responsible for all
sales, use or services taxes of any kind, with the exception of
1.10 "Site" means the ADG Internet websdes hosted and taxes based on ADG's income.
maintained by or on behalf of ADG, and any successor sites
thereto, at which Authorized Users may access the ADG Service. 3.4 Late Payments, If Customer fails to timely pay any
amount due within thirty (30) days of the payment due date: (i)
1.11 "Term"has the meaning set forth in Section 10. Customer shall pay, in addition, interest at the rate of one and one
1.12 "Terms of Service" means the online terms and half percent (1%%) per month, but not to exceed the maximum
conditions related to the use of the ADG Service that are posted allowed by law; and (ii) ADG may, at ADG's option, suspend
on the Site at the "Terms of Service" page, and that a user must Customer's and its Authorized Users' access to the ADG Service
accept before accessing the ADG Service. and, if the delinquency continues for an additional fifteen (15)
2. Customer Rights and Obligations. days after the initial suspension date. ADG may, at its option,
terminate this Agreement. Fees will continue to accrue during any
2.1 License Grant. Subject to the terms of this Agreement, such suspension.
ADG hereby grants Customer a non-exclusive, non-transferable,
personal right and license during the Agreement Term to allow the 4. Authorized User Registration. Priors the initial
access to the ADG Service, each Authorized U number of Authorized Users for which Customer has purchased a User; c shall
subscription to access and use the ADG Service to generate register with ADG as set forth in the registration procedures
Reports solely for Customer's internal business purposes, posted the Site, either during a trial period (if any) or upon
purchasing a full subscription to the ADG Service; and (ii) must
2.2 Reports. In addition to the foregoing, Customer may first electronically agree to the Terms of Service document on the
reproduce and publish Reports internally and to Customer's Site. All collection and use of Authorized User data submitted
clients, provided Customer includes an attribution statement during registration shall be in accordance with ADG's then-current
acknowledging ADG's ownership of the Report. This attribution published privacy policy.
statement shall be in a form and manner prescribed and approved 5. Proprietary Rights. All right, title, and interest in and to
by ADG. If ADG determines, in its sole discretion, that Customer the ADG Service, the ADG Content, the Reports, the Site, and
is distributing or publishing any Reports in a manner detrimental any related documentation, including any corrections, updates,
to ADG's business, Customer shall immediately cease distributing adaptations, enhancements thereto, or authorized copies thereof,
and/or publishing Reports upon receipt of ADG's written notice. shall remain exclusively with ADG and its licensors, as applicable.
2.3 Restrictions. Except as expressly authorized in this Access to the ADG Service and/or the Site is provided to
Agreement, Customer: (i) will use reasonable efforts to ensure Authorized Users only to allow Customer to exercise Customer's
that neither the ADG Service, the ADG Content, nor any Reports rights under this Agreement.
are displayed outside of the Site or distributed in any way to any B Disclaimer. Customer acknowledges and agrees that
third party; (ii) shall not rent, lease, distribute, transfer, copy,reproduce, display, modify, or timeshare the ADG Service, the any collection and compilation of data may result in the likelihood
of some human and machine errors, omissions, delays,
ADG Content, the Reports, or any portion thereof; (Ili) will take all interruptions, and losses, including inadvertent loss of data or
reasonable steps to protect the ADG Service and the Site from damage to media, which may give rise to loss or damage,
unauthorized access or use; (iv) will use best efforts to prevent Accordingly, Customer agrees that ADG PROVIDES THE ADG
third parties from obtaining Passwords; and (v) will immediately SERVICE, THE SITE, AND THE ADG CONTENT ON AN "AS-IS"
inform ADG of any actual or potential unauthorized access to a AND "WHERE-IS" BASIS. EXCEPT FOR THE TARGET
Password or to the ADG Service. ADG reserves all rights not expressly granted in this Agreement. SERVICE LEVELS SET FORTH IN EXHIBIT C, ADG DOES NOT
WARRANT THAT THE ADG SERVICE,THE SITE, OR THE ADG
2.4 Service Levels. ADG will host and maintain the ADG CONTENT (OR ACCESS THERETO) WILL BE ERROR FREE,
Service in accordance with the target service levels described in CURRENT, OR UNINTERRUPTED OR THAT ALL ERRORS
Exhibit C. CAN OR WILL BE CORRECTED. ADG MAKES NO
2.5 Support. ADG will provide support for the ADG Service WARRANTIES WITH RESPECT TO THE ACCURACY OF THE
in accordance with the terms of Exhibit C. INFORMATION CONTAINED IN THE ADG SERVICE, THE ADG
CONTENT, THE REPORTS OR THE SITE, WHETHER
3. Fees and Payment. EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,AND ADG
3.1 Authorized User Fees. Customer agrees to pay ADG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
the applicable Authorized User Fees for services provided during INCLUDING BUT NOT LIMITED TO THE IMPLIED
the Initial Term. Authorized User fees for each Renewal Term WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY
shall be based on ADG's then-current license fees, subject to a RIGHTS, MERCHANTABILITY AND FITNESS FOR A
fee increase cap of five percent (5%) over the Authorized User PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF
Fee charged in the previous year. DEALING, USAGE, OR TRADE PRACTICE.
3.2 Additional Foos. Fees for additional services such as 7- Limitations of Liability.
onsite or remote training, consulting, or enhancement services 7-1 CUSTOMER AGREES THAT IN NO EVENT WILL ADG
shall be at ADG's then-current rates for such services. OR ITS LICENSORS BE LIABLE TO CUSTOMER OR TO ANY
Additionally, Customer shall reimburse ADG monthly in arrears for
2
THIRD PARTY CLAIMING THROUGH CUSTOMER FOR THE 11. Termination. Either party may terminate this Agreement
RESULTS OF CUSTOMER'S OR ITS AUTHORIZED USERS' upon thirty (30) days' written notice of a material breach of this
USE OF THE ADG SERVICE, THE SITE, OR THE ADG Agreement by the other party if such breach is not cured within
C^--T-E-N , FOR—MY—SPEC-+AL INBIDEN-T-AL-,----such-thirty (30)- day-period-providEFd,-roweneY-that ny w1 u
CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES EVEN unauthorized access, use, copying, disclosure, distribution, or
IF ADG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH sublicensing of the ADG Service, the ADG Content, Reports, or
DAMAGES. the Site by Customer or any Authorized User will be deemed a
T.2 THE CUMULATIVE LIABILITY OF ADG AND ITS material breach of this Agreement that cannot be cured. In
LICENSORS TO CUSTOMER FOR ALL CLAIMS ARISING addition to the foregoing, either party may terminate this
UNDER THIS AGREEMENT, UNDER ANY LEGAL OR Agreement immediately upon the insolvency, filing for bankruptcy
EQUITABLE THEORY, INCLUDING NEGLIGENCE, SHALL NOT (whether voluntary or involuntary), receivership, or general
EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO ADG assignment for the benefit of creditors of the other party. Upon
HEREUNDER. the expiration or earlier termination of the Agreement, (i) each
8. Indemnification. ADG shall, at its expense, defend, party will return to the other party any Confidential Information of
p the other party; (ii) all fees for services rendered prior to the
indemnify, and hold Customer and its Authorized Users harmless effective date of termination shall be immediately due and
from and against any claim, suit, proceeding or loss, damages or payable; and (ill) Customer and each Authorized User will no
liability of any kind resulting from, arising out of, or related to a longer be provided access to the ADG Service or the Site.
claim that the software used to provide the ADG Service and/or
the ADG Content infringes or misappropriates any third party 12, Miscellaneous. This Agreement shall be governed by the
copyright, trade secret, or U.S. patent; provided that Customer laws of the State of California,without reference to conflict of laws
provides ADG with prompt notice of such claims, and provides principles. Customer acknowledges that the ADG Service and the
ADG with reasonable assistance with respect to the defense ADG Content may be subject to the export controls laws and
thereof. In the event that the use of the ADG Service is or may be regulations of the United States and other jurisdictions.
enjoined, ADG will use commercially reasonable efforts to replace Customer, for itself and its Authorized Users, agrees to faithfully
the infringing ADG Service with a non-infringing version of the comply with all such laws and regulations, and agrees to hold
ADG Service of no less than equivalent functionality. ADG entirely harmless from and against any liability, costs,
CUSTOMER ACKNOWLEDGES THAT THE FOREGOING damages, or expenses of any kind, including without limitation
INDEMNITY AND LIMITED REMEDY IS CUSTOMER'S SOLE attorneys' fees, related to Customer's breach of such laws and
AND EXCLUSIVE REMEDY, AND ADG'S SOLE AND regulations. Except for ADG's right to seek injunctive relief to
EXCLUSIVE LIABILITY, WITH RESPECT TO THE protect its proprietary rights hereunder, the parties hereby consent
INFRINGEMENT BY THE ADG SERVICE AND THE ADG and submit to the exclusive jurisdiction of the federal and state
CONTENT OF ANY THIRD PARTY'S INTELLECTUAL courts sitting in the Northern District of California for the resolution
PROPERTY RIGHTS. of any dispute arising out of this Agreement. Any failure by a
9. Confidential Information. For the purposes of this party at any time or from time to time to enforce or require strict
p p compliance with any term or condition of this Agreement will not
Agreement, "Confidential Information" means any and all (Q constitute a waiver of such term or condition. No waiver will be
technical and non-technical information including patent, trade enforceable unless embodied in a writing signed by the party
secret, and proprietary information, techniques, sketches, charged with such waiver. This Agreement may not be modified
drawings, models, inventions, know-how, processes, apparatus, except by a written instrument signed by both parties. In the
equipment, and algorithms related to the ADG Service, the ADG event of the invalidity, in whole or in part, of any term of this
Content, or the Site; (ii) information relating to costs, prices and Agreement, the parties agree that such invalidity shall not affect
names, finances, marketing plans, business opportunities, the validity of any other term of this Agreement and that such term
personnel, research, development, or know-how; and (iii) shall be subject to partial enforcement to the extent permitted
information designated by either party as confidential in writing or, under applicable law. Any notice required or permitted to be sent
if disclosed orally, reduced to writing within thirty (30) days. under this Agreement shall be delivered by hand, by overnight
Notwithstanding the foregoing, "Confidential Information" shall not courier or by registered mail, return receipt requested, to the
include information that! (1) is or becomes generally known or address of the parties set forth in this Agreement or to such other
available by publication, commercial use or otherwise through no address of the parties designated in writing in accordance with
fault of the disclosing party; (2)is known and has been reduced to this subsection. This Agreement is not assignable by Customer
tangible form by the disclosing party at the time of disclosure and without the prior written consent of ADG, which consent shall not
is not subject to restriction; (3) is independently developed or be. unreasonably withheld. Any attempt at assignment by
learned by either party; or(4) is released for publication in writing. Customer, including by means of merger, acquisition, operation of
Each party agrees that it will not, and will ensure that its law or otherwise, without Such consent shall be null and void and
employees, agents, and contractors will not, make use of, of no force and effect. Subject to the foregoing, this Agreement
disseminate, or in any way disclose any Confidential Information shall inure to the benefit of and be binding upon the parties, their
of the other party to any person, firm, or business, except for any successors and assigns. Sections 1, 3 (with respect to any fees
purpose the disclosing party may hereafter authorize in writing. generated prior to the effective date of termination), and 5 through
Each party agrees that it will treat all Confidential Information with 12 shall survive the expiration of this Agreement. This
the same degree of care as it accords to its own Confidential Agreement,the Terms of Service and the Exhibits attached hereto
Information, and each party represents that it exercises set forth the entire understanding and agreement between
reasonable care to protect its own Confidential Information. Customer and ADG and supersedes all prior or contemporaneous
10. Term. The term of this Agreement shall begin on the proposals or communications, oral or written, between the parties
Effective Date and shall continue for the period set forth in Exhibit relating to the subject matter of the Agreement.
B, unless earlier terminated as set forth below(the"Initial Term")
The Initial Term may be referred to in this Agreement as the
"Term."
3
APGDA.T
------ ---- --- EXHIBIT A - --- --
DESCRIPTION OF ADG SERVICE
The ADG 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 ADG or the Office of Airline Information at the DOT's Bureau of
Transportation Statistics. Non-U.S. users do not have access to international 0&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
• Gross Fare Band tool
• Segment P&L tool
• Airline Performance tool
• Demographics Map tool
• Reference Data
• Airline Codes, Names, and Alliance Members
• Airline Equipment Types and Seat Counts
• Airport Codes, Names,and Locations
• Metropolitan Area Definitions
• Great Circle Route Distance Calculators
5
AI3GDAT
EXHIBIT 6 --
AUTHORIZED USER FEES
Authorized User Fees for Initial Term:
Number of Authorized Users Total Authorized User Fee Monthl Authorized User Fee
4 $18,000 $1,500
Initial Term: One (1)year only(cannot exceed$18,000 without council approval)
Payment Terms: AEG 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:
AUG's sister company Seabury Airline Planning Group, LLC handles invoicing for AOG.
AUG Contact Information for Invoicing
Name: Eva Cooper
Address: Seabury APG Phone: (703) 748-9890
1919 Gallows Rd., Suite 550 Fax: (703) 748-9895
Vienna, VA 22182 E-Mail: eva ceo er aggnat.com
Customer's primary contact, Mark Kiehl, will also handle invoicing, with the contact info given at the beginning of this
Agreement-
6
A P G D7 AT
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; (i) 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 ADG's reasonable control,
1.2 "Maintenance Outage" means a planned or unplanned maintenance period, including without
limitation any maintenance downtime or maintenance outage, not to exceed an aggregate of fifteen (15) hours in any
three (3) calendar month period during the Term and, in any case, no more than seven and one-half(7%) hours per
calendar month.
1.3 "Service Outage" means any time when the ADG Service is inoperable or unavailable due to or
caused by reasons within ADG's control, excluding specifically the following reasons: (1) Customer's own Internet
service provider; (5)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 Flours 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. ADG will use commercially reasonable efforts to ensure that the ADG Service will
be available at least ninety-nine percent(99%)of the time measured monthly, using the fallowing formula:
Uptime Unit Hours of Operation minus Service Outages
Unit Hours of Operation
3. Maintenance Outages. ADG 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. ADG 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. ADG shall provide telephone and email support to Customer for problems that interrupt
or significantly impair the operation of the ADG Service. A designated ADG customer service representative will
respond to all emails within two (2) U.S. business days of each Customer query. ADG will provide status updates at
regular intervals as appropriate until the issue has been satisfactorily resolved. In addition,ADG will track and correct
all reproducible problems related to the functionality of the ADG Service within twelve (12)hours of receiving a report
thereof.
7
AZDAT
SUBSCRIPTION AGREEMENT
This Subscription Agreement(the°Agreement") is effective as of the date set forth below(the"Effective Date") between:
"ADG- Aviation Data Group, LLC, a California limited liability company
497 Bird Avenue, Los Gatos, California 95032
Phone. (408) 399-0570 Fax: (408) 354-0907 E-Mail: legal.noticesio-Daocnet.com
and
"CustSomef": 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: Brian.KiddIppalmsprines-ca.gov
Effective Date: July 1a, 2007
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, ADG 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.
AVIATION DATA GROUP, LLC PALM SPRINGS INTERNATIONAL AIRPORT
Si nature Signature
Brian Kulman David H. Ready
Name Name W
Chief Technical Officer City Manager
Title Title
/�jv/�1-
TERMS AND CONDITIONS
1. Definitions. contains the ADG Content; and (ii) Is hosted and served on the
1.1 • "ADG Content" means the proprietary information, Site.
databases,reports, maps, charts, graphs,tools, and other content 1.3 "Authorized User" means a Customer employee who
which are made available to Customer and each Authorized User has received a valid Password from ADG and has accepted the
through the ADG Service. Terms of Service.
1.2 "ADG Service" means the ADG proprietary Internet- 1.4 "Authorized User Fee" means the fee described in
based report generating service, and any updates and Exhibit B,which may be changed by ADG from time to time, that
enhancements thereto, currently referred to as "APGDat," that Is due from Customer for each Authorized User license issued
provides standard and customized reports for travel and airline under this Agreement.
industry data as more specifically described in Exhibit A (which 1.5 "Confidential Information"has the meaning set forth in
ADG may change From time to time in its discretion) and that (i) Section 9.
1.6 "Initial`rerm"has the meaning set forth in Section 10.
1
1.7 "Password" means the unique password assigned to expenses incurred in providing such services, provided such
each Authorized User by ADO which permits access to the ADO expenses have been pre-approved by Customer. AIDG will
Service. provide Customer with adequate documentation for all such
1.8 "Renewal Term" has the meaning set forth in Section expenses.
10. 3.3 Payment/Timin-g. Payments shall be due in accordance
1.9 "Reports' means individual data analysis reports, with the terms set forth in Exhibit B. All arpounts are due in
including,without limitation, maps, charts, and graphs, generated United States Dollars and are net of any taxes or applicable wire
by the ADO Service pursuant to data parameters requested by an transfer fees. Customer agrees that it will be responsible for all
Authorized User. sales, use or services taxes of any kind, with the exception of
taxes based on ADO's income.
maintained
"Site" means the ADG Internet we successor
hosted and 3.4 Late Payments. If Customer fails to timely pay any
maintained by or on behalf of ADO, and anyy successor sites
thereto, at which Authorized Users may access the ADG Service. amount due within thirty (30) days of the payment due date: ()
Customer shall pay,in addition, interest at the rate of one and one
1.11 'Term"has the meaning set forth in Section 10. half percent (1'/:9/6) per month, but not to exceed the maximum
1.12 "Terms of Service" means the online terms and allowed by law; and (i) ADG may, at ADG's option, suspend
conditions related to the use of the ADG Service that are posted Customer's and its Authorized Users' access to the AUG Service
on the Site at the"Terms of Service" page, and that a user must and, if the delinquency continues for an additional fifteen (15)
accept before accessing the ADG Service. days after the initial suspension date, ADG may, at its option,
2. Customer Rights and Obligations. terminate this Agreement. Fees will continue to accrue during any
such suspension.
2.1 License Grant. Subject to the terms of this Agreement, 4_ Authorized User Registration. Prior to the initial
ADG hereby grants Customer a non-exclusive, non-transferable, access to the ADG Service, each Authorized User: (i) shall
personal right and license during the Agreement Term to allow the register with ADG as set forth in the registration procedures
number of Authorized Users for which Customer has purchased a posted on the Site, either during a trial period (if any) or upon
subscription to access and use the ADG Service to generate
Reports solely for Customer's internal business purposes. purchasing full subscription to the ADG Service; and (ti) must
first electronically agree t0 the Terms Of Service document On the
2.2 Reports. In addition to the foregoing, Customer may Site. All collection and use of Authorized User data submitted
reproduce and publish Reports internally and to Customer's during registration shall be in accordance with ADO's then-current
clients, provided Customer includes an attribution statement published privacy policy.
acknowledging ADO's ownership of the Report. This attribution 5. Proprietary Rights. All right,title, and interest in and to
statement shall be in a form and manner prescribed and approved the ADG Service, the ADG Content, the Reports, the Site, and
by ADG. If ADG determines, in its sole discretion, that Customer any related documentation, including any corrections, updates,
is distributing or publishing any Reports in a manner detrimental adaptations, enhancements thereto, or authorized copies thereof,
to ADG's business,Customer shall immediately cease distributing shall remain exclusively with ADG and its licensors, as applicable.
and/or publishing Reports upon receipt of ADG's written notice. Access to the ADG Service and/or the Site is provided to
2.3 Restrictions. Except as expressly authorized in this Authorized Users only to allow Customer to exercise Customer's
Agreement, Customer: (1) will use reasonable efforts to ensure rights under this Agreement.
that neither the ADG Service, the ADG Content, nor any Reports 6. Disclaimer. Customer acknowledges and agrees that
are displayed outside of the Site or distributed in any way to any any collection and compilation of data may result in the likelihood
third party; (ii) shall not rent, lease, distribute, transfer, copy, pf some human and machine errors, omissions, delays,
reproduce, display, modify, or timeshare the ADG Service, the interruptions, and losses, including inadvertent loss of data or
ADG Content,the Reports, or any portion thereof; (iii)will take all damage to media, which may give rise to loss or damage.
reasonable steps to protect the ADG Service and the Site from Accordingly, Customer agrees that ADG PROVIDES THE ADG
unauthorized access or use; (iv) will use best efforts to prevent SERVICE, THE SITE,AND THE ADG CONTENT ON AN "AS-IS"
third parties from obtaining Passwords; and (v) will immediately AND "WHERE-IS" BASIS. EXCEPT FOR THE TARGET
inform ADG of any actual or potential unauthorized access to a SERVICE LEVELS SET FORTH IN EXHIBIT C,ADG DOES NOT
Password or to the ADG Service. ADG reserves all rights not WARRANT THAT THE ADG SERVICE,THE SITE, OR THE ADG
expressly granted in this Agreement. CONTENT (OR ACCESS THERETO) WILL BE ERROR FREE,
2.4 Service Levels. ADG will host and maintain the ADG CURRENT, OR UNINTERRUPTED OR THAT ALL ERRORS
Service in accordance with the target service levels described in CAN OR WILL BE CORRECTED, ADO MAKES NO
Exhibit C. WARRANTIES WITH RESPECT TO THE ACCURACY OF THE
2.5 Support. ADG will provide support for the ADG Service INFORMATION CONTAINED IN THE ADG SERVICE, THE ADO
in accordance with the terms of Exhibit C. CONTENT, THE REPORTS OR THE SITE, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,AND ADG
3. Fees and Payment EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
3.1 Authorized User Fees. Customer agrees to pay ADG INCLUDING BUT NOT LIMITED TO THE IMPLIED
the applicable Authorized User Fees for services provided during WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY
the Initial Term, Authorized User fees for each Renewal Term RIGHTS, MERCHANTABILITY AND FITNESS FOR A
shall be based on ADG's then-current license fees, subject to a PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF
fee increase cap of five percent (5%) over the Authorized User DEALING, USAGE,OR TRADE PRACTICE.
Fee charged in the previous year. 7. Limitations of Liability.
3.2 Additional Fees. Fees for additional services such as 7.1 CUSTOMER AGREES THAT IN NO EVENT WILL ADO
onsite or remote training, consulting, or enhancement services OR ITS LICENSORS BE LIABLE TO CUSTOMER OR TO ANY
Shall be at ADG's then-current rates for such services. THIRD PARTY CLAIMING THROUGH CUSTOMER FOR THE
Additionally, Customer shall reimburse ADG monthly in arrears for RESULTS OF CUSTOMER'S OR ITS AUTHORIZED USERS'
ADO's reasonable travel, telephone and other out-of-pocket USE OF THE ADO SERVICE, THE SITE, OR THE ADG
2
CONTENT, OR FOR ANY SPECIAL, INCIDENTAL, Renewal Term shall be referred to in this Agreement as the
CONSE:GIUENTIAL, INDIRECT OR PUNITIVE DAMAGES EVEN "Term.' C
IF ADCs HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH 11. Termination. Either party may terminate this Agreement
DAMAGES. upon thirty (30) days' wd n notice of a material breach of this
7.2 THE CUMULATIVE LIABILITY OF AUG AND ITS Agreement b the other a if such breach is not cureo wr m (�
LICENSORS TO CUSTOMER FOR ALL CLAIMS ARISING hlrly ( )0 day period; provided, however, that any wi \
UNDER THIS AGREEMENT, UNDER ANY LEGAL OR unauthorized a seCc' s use,'copying, disclosure, distribution, or
EQUITABLE THEORY, INCLUDING NEGLIGENCE, SHALL NOT sublicensing of the AUG Service, the AUG Content, Reports, or
EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO ADG the Site by Customer or any Authorized User will be deemed a
HEREUNDER. material breach of this Agreement that cannot be cured. In
8. Indemnification. AUG shall, at its expense, defend, addition to the foregoing, either party may terminate this
indemnify, and hold Customer and its Authorized Users harmless Agreement immediately upon the insolvency, filing for bankruptcy
from and against any claim, suit, proceeding or loss,damages or (whether voluntary or involuntary), receivership, or general �
liability of any kind resulting from, arising out of, or related to a assignment for the benefit of creditors of the other party. Upon
claim that the software used to provide the AUG Service and/or the expiration or earlier termination of the Agreement, (i) each
the ADG Content infringes or misappropriates any third party party will return to the other party any Confidential Information of
copyright, trade secret, or U.S. patent; provided that Customer the other party; (i) all fees for services rendered prior to the
provides AUG with prompt notice of such claims, and provides effective date of termination shall be immediately due and
AUG with reasonable assistance with respect to the defense payable; and (Ili) Customer and each Authorized User will no
thereof_ In the event that the use of the ADG Service is or may be longer be provided access to the AUG Service or the Site.
enjoined,AUG will use commercially reasonable efforts to replace 12. Miscellaneous. This Agreement shall be governed by the
the infringing AUG Service with a non-infringing version of the laws of the State of California,without reference to conflict of laws
AUG Service of no less than equivalent functionality. principles. Customer acknowledges that the AUG Service and the
CUSTOMER ACKNOWLEDGES THAT THE FOREGOING AUG Content may be subject to the export controls laws and
INDEMNITY AND LIMITED REMEDY IS CUSTOMER'S SOLE regulations of the United States and other jurisdictions.
AND EXCLUSIVE REMEDY, AND ADG'S SOLE AND Customer, for itself and its Authorized Users, agrees to faithfully
EXCLUSIVE LIABILITY, WITH RESPECT TO THE comply with all such laws and regulations, and agrees to hold
INFRINGEMENT BY THE AUG SERVICE AND THE AUG AUG entirely harmless from and against any liability, costs,
CONTENT OF ANY THIRD PARTY'S INTELLECTUAL damages, or expenses of any kind, including without limitation
PROPERTY RIGHTS. attorneys' fees, related to Customer's breach of such laws and
9. Confidential Information. For the purposes of this regulations. Except for AUG's right to seek injunctive relief to
Agreement, "Confidential Information" means any and all (i) protect its proprietary rights hereunder,the parties hereby consent
technical and non-technical information including patent, trade and submit to the exclusive jurisdiction of the federal and state
secret, and proprietary information, techniques, sketches, courts sitting in the Northern District of California for the resolution
drawings, models, inventions, know-how, processes, apparatus, of any dispute arising out of this Agreement. Any failure by a
equipment, and algorithms related to the AUG Service, the AUG party at any time or from time to time to enforce or require strict
Content, or the Site; (ii) information relating to costs, prices and compliance with any term or condition of this Agreement will not
names, finances, marketing plans, business opportunities, constitute a waiver of such term or condition. No waiver will be
personnel, research, development, or know-how; and (Ili) enforceable unless embodied in a writing signed by the party
information designated by either party as confidential in writing or, charged with such waiver. This Agreement may not be modified
if disclosed orally, reduced to writing within thirty (30) days, except by a written instrument signed by both parties. In the
Notwithstanding the foregoing,"Confidential Information" shall not event of the invalidity, in whole or in part, of any term of this
include information that: (1) is or becomes generally known or Agreement, the parties agree that such invalidity shall not affect
available by publication, commercial use or otherwise through no the validity of any other term of this Agreement and that such term
fault of the disclosing party; (2)is known and has been reduced to shall be subject to partial enforcement to the extent permitted
tangible form by the disclosing party at the time of disclosure and under applicable law. Any notice required or permitted to be sent
is not subject to restriction; (3) is independently developed or under this Agreement shall be delivered by hand, by overnight
learned by either party; or(4) is released for publication in writing. courier or by registered mail, return receipt requested, to the
Each party agrees that it will not, and will ensure that its address of the parties set forth in this Agreement or to such other
employees, agents, and contractors will not, make use of, address of the parties designated in writing in accordance with
disseminate, or in any way disclose any Confidential Information this subsection. This Agreement is not assignable by Customer
of the other party to any person, firm, or business, except for any without the prior written consent of AUG. which consent shall not
purpose the disclosing party may hereafter authorize in writing. be unreasonably withheld. Any attempt at assignment by
Each party agrees that it will treat all Confidential Information with Customer, including by means of merger,acquisition,operation of
the same degree of care as it accords to its own Confidential law or otherwise, without such consent shall be null and void and
Information, and each party represents that it exercises of no force and effect. Subject to the foregoing, this Agreement
reasonable care to eft itstcwtall tion. shall inure to the benefit of and be binding upon the parties, their
successors and assigns. Sections 1, 3 (with respect to any fees
10. rm, The term of this Agreement shall begin he generated prior to the effective date of termination),and 5 through
Eff a Date and shall continue for the period set forth in Ex it 12 shall survive the expiration of this Agreement. This
,unless earlier terminated as set forth below(the"Initial Term Agreement, the Terms of Service and the Exhibits attached hereto
hereafter, this Agreement will automatically renew for additional set forth the entire understanding and agreement between
one (1) year periods unless another renewal term is set forth in Customer and AUG and supersedes all prior or contemporaneous
Exhibit B. in which case that term will apply (each, a "Renewal proposals or communications, oral or written, between the parties
Term"), unless either party provides the other party with written relating to the subject matter of the Agreement.
notice of its intent not to renew at least sixty (60) days prior to the
end of the then-current term. Collectively,the Initial Term and the
(END OF RMS AND CONDITIONS]
APGDAT
EXHIBIT A
DESCRIPTION OF ADG SERVICE
The ADG Service includes the following data,tools and information:
Worldwide Airline Schedule Data
• U.S.Department of Transportation(DOT)Origin and Destination(O&D) Data(DB1 B)
All U.S. users must complete their Certification to Protect Restricted Release Aviation Economic
Information, which is available from ADG 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 0&D data.
• U.S.DOT Onboard Data(T100)
U.S.DOT Form 41 Data
• Market Size Data
Miscellaneous Tools
• Gross Fare Band tool
• Segment P&L tool
Airline Performance tool
• Demographics Map tool
• Reference Data
• Airline Codes, Names,and Alliance Members
• Airline Equipment Types and Seat Counts
• Airport Codes, Names,and Locations
• Metropolitan Area Definitions
• Great Circle Route Distance Calculators
4
APG DDT
EXHIBIT B
AUTHORIZED USER FEES
Authorized User Fees for Initial Term:
Number of Authorized Users I 'Total Authorized User Fee Monthly Authorized User Fee'
a $18,000 ' $1,500
Initial Term:One(1)yea//I,
1✓ Cj9�✓/✓� Zo"4f
i
.4W1I�"�rP1�Payment Terms: ADG s invoices for the Authorized User Fees monthly, in advan . s shall be due
within thirty(30) days from the invoice date. Payments made by wire transfer should inclu e e transfer fee of
the outgoing bank, in addition to the Authorized User Fee.
Invoicing Information:
ADG's sister company Seabury Airline Planning Group,LLC handles invoicing for ADG.
ADG Contact Information for Invoicing—
Name: Eva Cooper
Address: Seabury Airline Planning Group, LLC Phone: (703)467-9607
12012 Sunset Hills Rd., Suite 455 Fax: (703)457-9765
Reston,VA 20190 e-Mail: eva cooper( ),apanet com
USA
Customers primary contact, Brian Kidd,will also handle invoicing,with the contact info given at the beginning of this
Agreement.
5
APGDAT
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, d'dficulbes, 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 ADG'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'/a) hours per
calendar month.
1.3 "Service Outage" means any time when the ADG Service is inoperable or unavailable due to or
caused by reasons within ADG's control, excluding specifically the following reasons: O Customers own Internet
service provider; (ii)a Force Majeure Event; (iri)any systemic Internet failures; or(iv)any failure in a Customers own
hardware,software,or network connection.
1 A '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, ADG will use commercially reasonable efforts to ensure that the ADG 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. ADG 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. ADG 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. ADG shall provide telephone and email support to Customer for problems that interrupt
or significantly impair the operation of the ADG Service. A designated ADG customer service representative will
respond to all emails within two (2) U.S. business days of each Customer query, ADG will provide status updates at
regular intervals as appropriate until the issue has been satisfactorily resolved. In addition,ADG will track and correct
all reproducible problems related to the functionality of the ADG Service within twelve (12) hours of receiving a report
thereof.
6