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HomeMy WebLinkAboutC16-488 Diio LLCSUBSCRIPTION AGREEMENT This Subscription Agreement (the "Agreement') is effective as of the date set forth below (the "Effective Date") between: "Diio": Diio, LLC, a California limited liability company 1775 Wiehle Ave., Suite 330, Reston, Virginia 20190 Phone: (408) 353-0530 E -Mail: Ieaal.noticesCoWiio.net And "Customer": Eagle County, Colorado, a Colorado county government PO Box 850 Eagle, Colorado 81631 Phone: (970) 328-2649 E -Mail: chds.andersonCa-eaglecountv.us And "Customer": Vail Resorts, Inc., a Colorado corporation PO Box 7, Dept S73, Vail, Colorado 81658 Phone: (970) 754-2953 E -Mail: gabes(&vailresorts.com Effective Date: February 15t, 2016 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 EAGLE COUNTY Signature Signatbre Jordan Name Senior Vice President Title Brent McFall Name County Manager Title VAIL RESORTS, INC. S i gAfu fe Jim Kellen Name Director Marketing, Vail C16-488 TERMS AND CONDITIONS Definitions. 1.1 "Diio Content' means the proprietary information, databases, reports, maps, charts, graphs, tools, software, documentation, and other materials that are made available to Customer and each Authorized User through the Diio Service. 1.2 "Diio Service" means the Diio proprietary Internet - based report generating service, and any updates and enhancements thereto, currently referred to as "Diio Mi Express," that provides standard and customized reports for travel and airline industry data as more specifically described in Exhibit A and that: (i) contains the Diio Content; and (ii) is hosted and served on the Site. 1.3 "Authorized User" means those uniquely identified persons who: (i) are employed by Customer; (ii) agree to be bound by the Terms of Service; and (iii) have received a valid Password from Diio. Diio reserves the right not to approve an Authorized User. 1.4 "Authorized User Fee" means the fee described in Exhibit B that is due from Customer for access to the Diio Service by the number of Authorized Users specified in Exhibit B. 1.5 "Confidential Information" has the meaning set forth in Section 9. 1.6 "Initial Term" has the meaning set forth in Section 10. 1.7 "Password" means the unique password assigned to each Authorized User by Diio that permits access to the Diio Service. 1.8 "Renewal Term" has the meaning set forth in Section 10. 1.9 "Reports" means individual data analysis reports, including, without limitation, maps, charts, and graphs, generated by the Diio Service pursuant to data parameters requested by an Authorized User. 1.10 "Site" means the Diio Internet websites hosted and maintained by or on behalf of Diio, and any successor sites thereto, at which Authorized Users may access the Diio Service. 1.11 "Term" has the meaning set forth in Section 10. 1.12 "Terms of Service" means the online terms and conditions related to the use of the Diio Service that are posted on the Site at the "Terms of Service" page and that a user must accept before accessing the Diio Service. 2. Customer Rights and Obligations. 2.1 License Grant. Subject to the terms of this Agreement, Diio hereby grants Customer a non-exclusive, non -transferable right and license during the Agreement Term to allow the number of Authorized Users for which Customer has purchased a subscription to access and use the Diio Service to generate Reports solely for Customer's internal business purposes. Customer acknowledges that Diio: (i) has complete and sole discretion over the selection and arrangement of Content available on the Diio Service; (ii) can move or delete Content at 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 licensors may also make improvements and/or changes to the Diio Service or the Content at any time without notice. 2.2 Reports. In addition to the foregoing, Customer may reproduce and publish Reports internally and to Customer's clients, provided Customer includes an attribution statement acknowledging Diio's ownership of the Report. This attribution statement shall be in a form and manner prescribed and approved by Diio. If Diio determines, in its sole discretion, that Customer is distributing or publishing any Reports in a manner detrimental to Diio's business, Customer shall immediately cease distributing and/or publishing the Reports upon receipt of Diio's written notice. 2.3 Restrictions. Except as expressly authorized in this Agreement, Customer: (i) will use reasonable efforts to ensure that neither the Diio Service, the Diio Content, nor any Reports are displayed outside of the Site or distributed in any way to any third party; (ii) shall not rent, lease, distribute, transfer, copy, reproduce, display, modify, or timeshare the Diio Service, the Diio Content, the Reports, or any portion thereof; (iii) will take all reasonable steps to protect the Diio Service and the Site from unauthorized access or use; (iv) will use best efforts to prevent third parties from obtaining Passwords; and (v) will immediately inform Diio of any actual or potential unauthorized access to a Password or to the Diio Service. Diio reserves all rights not expressly granted in this Agreement. 2.4 Service Levels. Diio will host and maintain the Diio Service in accordance with the target service levels described in Exhibit C. 2.5 Support. Diio will provide support for the Diio Service in accordance with the terms of Exhibit C. 2.6 Identification of Customer. Customer agrees that Diio may name Customer as a user of the Diio Service in its marketing materials and on its website without payment of any separate fees. If Customer has made favorable comments about Diio or the Diio Service, Customer agrees that Diio may reproduce these comments in its marketing materials or on its website. Diio may also permit its authorized partners to name Customer as a user or reproduce favorable comments in their marketing materials or on their websites. 3. Fees and Payment. 3.1 Authorized User Fees. Customer agrees to pay Diio the applicable Authorized User Fees for services provided during the Initial Term. Authorized User Fees for each Renewal Term shall be based on Diio's then -current license fees. At Customer's request within seventy-five (75) days of the end of the Term, Diio will provide a written schedule of its then -current fees that would apply to any Renewal Term. 3.2 Additional Fees. Customer understands that Diio incurs costs for changing Authorized Users and agrees that Diio may impose a fee at its then -current rates if Customer changes its Authorized Users on average more than once per month. In addition, fees for additional services such as onsite or remote training, consulting, or enhancement services shall be at Diio's then -current rates for such services. Additionally, Customer shall reimburse Diio monthly in arrears for Diio's reasonable travel, telephone, and other out-of-pocket expenses incurred in providing such services, provided such expenses have been pre -approved by Customer. Diio will provide Customer with adequate documentation for all such expenses. 3.3 Payment/Timing. Payments shall be due in accordance with the terms set forth in Exhibit B. All amounts are due in 2 United States Dollars and are net of any taxes or applicable wire transfer fees. Customer agrees that it will be responsible for all sales, use, or services taxes of any kind, with the exception of taxes based on Diio's income. 3.4 Late Payments. If Customer fails to timely pay any amount due within thirty (30) days of the payment due date: (i) Customer shall pay, in addition, interest at the rate of one and one-half percent (1%%) per month, but not to exceed the maximum allowed by law; and (ii) Diio may, at Diio's option, suspend Customer's and its Authorized Users' access to the Diio Service and, if the delinquency continues for an additional fifteen (15) days after the initial suspension date, Diio may, at its option, terminate this Agreement. Fees will continue to accrue during any such suspension. 4. Authorized Users. 4.1 Registration. Upon execution of this Agreement, Diio will provide Customer with instructions on how Authorized Users shall access the Diio Service. Prior to his or her initial access to the Diio Service, each Authorized User: (i) shall register with Diio as set forth in the registration procedures posted on the Site and (ii) electronically agree to the Terms of Service document on the Site. All collection and use of Authorized User data submitted during registration shall be in accordance with Diio's then -current published privacy policy. 4.2 Customer Obligations. Customer agrees to be responsible for providing accurate and complete information about each Authorized User on registration as reasonably requested by 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 for whom inaccurate or incomplete information was provided during registration, for any Authorized User who Diio believes has violated the Terms of Service, and for any Authorized User who does not appear on the then -current list of Authorized Users provided by Customer. Customer is responsible for all activities that occur under Authorized User passwords. Customer shall notify all of its Authorized Users to keep such passwords confidential. Customer and/or individual Authorized Users must notify Diio immediately of any unauthorized use of passwords or if they believe that any such password is no longer confidential. Diio reserves the right to require Authorized Users to alter passwords if Diio believes that such password is no longer secure. 4.3 Remedies. Diio and its licensors reserve the right to investigate complaints or reported violations of this Agreement or the Terms of Service and/or applicable licenses and copyrights and to take any action they deem appropriate including, without limitation, reporting and providing information of any suspected unlawful activity to law enforcement officials, regulators, or other third parties, including disclosing any information necessary or appropriate to such persons or entities relating to user profiles, e- mail addresses, usage history, posted materials, IP addresses, and traffic information. Diio and its licensors reserve the right to seek all remedies available at law and in equity for violations of this Agreement or the Terms of Service, including, but not limited to, the right to block access to the Diio Service from a particular Internet address or username. 5. Proprietary Rights. All right, title, and interest in and to the Diio Service, the Diio Content, the Reports, the Site, and any related documentation, including any corrections, updates, adaptations, enhancements thereto, or authorized copies thereof, shall remain exclusively with Diio and its licensors, as applicable. Access to the Diio Service and/or the Site is provided to Authorized Users only to allow Customer to exercise Customer's rights under this Agreement. Because the Content incorporates Content from Diio's licensors, it may contain other proprietary notices, licenses, and terms for use of copyrighted information, the terms of which must be observed and followed by Customer and all Authorized Users. In the event of any conflict between the license(s) applicable to Content on the Diio Service and the Terms of Service, the applicable license(s) prevail. 6. Disclaimer. Customer acknowledges and agrees that any collection and compilation of data may result in the likelihood of some human and machine errors, omissions, delays, interruptions, and losses, including inadvertent loss of data or damage to media, which may give rise to loss or damage. Diio makes no representations or warranties that the Diio Service is free of bugs or other errors, or that it will operate continuously, or that the Content is complete, accurate, or free of malicious items. Diio assumes no responsibility for any errors or omissions in the Diio Content or any damage caused by use of the Diio Service or the Diio Content. Customer and its Authorized Users download or use Diio Content obtained from using the Diio Service at their own risk. Customer and its Authorized Users have the sole obligation to ensure that in using the Diio Service or downloading Diio Content they protect their systems and the systems of any of their customers or users against viruses, worms, or other items of a destructive nature. Customer further agrees that Diio PROVIDES THE DIIO SERVICE, THE SITE, AND THE DIIO CONTENT ON AN "AS -IS" AND "WHERE -IS" BASIS. EXCEPT FOR THE TARGET SERVICE LEVELS SET FORTH IN EXHIBIT C, DIIO DOES NOT WARRANT THAT THE DIIO SERVICE, THE SITE, OR THE DIIO CONTENT (OR ACCESS THERETO) WILL BE ERROR FREE, CURRENT, OR UNINTERRUPTED, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. DIIO MAKES NO OTHER WARRANTIES WITH RESPECT TO THE DIIO SERVICE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND DIIO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Limitations of Liability. 7.1 CUSTOMER AGREES THAT IN NO EVENT WILL DIIO OR ITS LICENSORS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY CLAIMING THROUGH CUSTOMER FOR THE RESULTS OF CUSTOMER'S OR ITS AUTHORIZED USERS' USE OF THE DIIO SERVICE, THE SITE, OR THE DIIO CONTENT, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES EVEN IF DIIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7.2 THE CUMULATIVE LIABILITY OF DIIO AND ITS LICENSORS TO CUSTOMER FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING NEGLIGENCE, SHALL NOT EXCEED THE TOTAL AMOUNT OF $50,000. 8. Indemnification. Diio shall, at its expense, defend, indemnify, and hold Customer and its Authorized Users harmless from and against any claim, suit, proceeding or loss, damages, or liability of any kind resulting from, arising out of, or related to a claim that the software used to provide the Diio Service and/or the 3 Diio Content infringes or misappropriates any third party copyright, trade secret, or U.S. patent; provided that Customer provides Diio with prompt notice of such claims, gives Diio the sole right to control the defense of such claims, and provides Diio with reasonable assistance with respect to the defense thereof. In the event that the use of the Diio Service is or may be enjoined, Diio will use commercially reasonable efforts to replace the infringing Diio Service with a non -infringing version of the Diio Service of substantially equivalent functionality. CUSTOMER ACKNOWLEDGES THAT THE FOREGOING INDEMNITY AND LIMITED REMEDY IS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND DIIO'S SOLE AND EXCLUSIVE LIABILITY, WITH RESPECT TO THE INFRINGEMENT BY THE DIIO SERVICE AND THE DIIO CONTENT OF ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. 9. Confidential Information. For the purposes of this Agreement, "Confidential Information" means any and all: (i) technical and non-technical information including patent, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, and algorithms related to the Diio Service, the Diio Content, or the Site; (ii) information relating to costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development, or know-how; and (iii) information designated by either party as confidential in writing or, if disclosed orally, reduced to writing within thirty (30) days. Notwithstanding the foregoing, "Confidential Information" shall not include information that: (1) is or becomes generally known or available by publication, commercial use, or otherwise through no fault of the receiving party; (2) is known and has been reduced to tangible form by the receiving party at the time of disclosure and is not subject to restriction; (3) is independently developed or learned by either party; or (4) is released for publication in writing. Each party agrees that it will not, and will ensure that its employees, agents, and contractors will not, make use of, disseminate, or in any way disclose any Confidential Information of the other party to any person, firm, or business, except for any purpose the disclosing party may hereafter authorize in writing. Each party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care to protect its own Confidential Information. 10. Term. The term of this Agreement shall begin on the Effective Date and shall continue for the period set forth in Exhibit B, unless earlier terminated as set forth below (the "Initial Term"). There is no Renewal Term for this agreement. The Initial Term may be referred to in this Agreement as the "Term." 11. Termination. Either party may terminate this Agreement upon thirty (30) days' written notice of a material breach of this Agreement by the other party if such breach is not cured within such thirty (30) day period; provided, however, that any willful unauthorized access, use, copying, disclosure, distribution, or sublicensing of the Diio Service, the Diio Content, Reports, or the Site by Customer or any Authorized User will be deemed a material breach of this Agreement that cannot be cured. In addition to the foregoing, either party may terminate this Agreement immediately upon the insolvency, filing for bankruptcy (whether voluntary or involuntary), receivership, or general assignment for the benefit of creditors of the other party. Upon the expiration or earlier termination of the Agreement: (i) each party will return to the other party any Confidential Information of the other party; (ii) all fees for services rendered prior to the effective date of termination shall be immediately due and payable; and (iii) Customer and each Authorized User will no longer be provided access to the Diio Service or the Site. 12. Miscellaneous. This Agreement shall be governed by the laws of the State of Colorado, without reference to conflict of laws principles. Customer acknowledges that the Diio Service and the Diio Content may be subject to the export controls laws and regulations of the United States and other jurisdictions. Customer, for itself and its Authorized Users, agrees to faithfully comply with all such laws and regulations, and to the extent permitted by law, agrees to hold Diio entirely harmless from and against any liability, costs, damages, or expenses of any kind, including without limitation attorneys' fees, related to Customer's breach of such laws and regulations. Except for Diio's right to seek injunctive relief to protect its proprietary rights hereunder, the parties hereby consent and submit to the exclusive jurisdiction of the District Court for Eagle County, Colorado for the resolution of any dispute arising out of this Agreement. The English language text of this Agreement shall prevail over any translation into any other language. Except for the obligation to make payments, non- performance of either party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non-performing party. Any failure by a party at any time or from time to time to enforce or require strict compliance with any term or condition of this Agreement will not constitute a waiver of such term or condition. No waiver will be enforceable unless embodied in a writing signed by the party charged with such waiver. Except as explicitly provided herein, this Agreement may not be modified except by a written instrument signed by both parties. In the event of the invalidity, in whole or in part, of any term of this Agreement, the parties agree that such invalidity shall not affect the validity of any other term of this Agreement and that such term shall be subject to partial enforcement to the extent permitted under applicable law. Any notice required or permitted to be sent under this Agreement shall be delivered by hand, by overnight courier, or by registered mail, return receipt requested, to the address of the parties set forth in this Agreement or to such other address of the parties designated in writing in accordance with this subsection. This Agreement is not assignable by Customer without the prior written consent of Diio, which consent shall not be unreasonably withheld. Any attempt at assignment by Customer, including by means of merger, acquisition, operation of law, or otherwise, without such consent shall be null and void and of no force and effect. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties, their successors, and assigns. Sections 1, 3 (with respect to any fees generated prior to the effective date of termination), and 5 through 12 shall survive the expiration of this Agreement. This Agreement, the Terms of Service, and the Exhibits attached hereto set forth the entire understanding and agreement between Customer and Diio and supersede all prior or contemporaneous proposals or communications, oral or written, between the parties relating to the subject matter of the Agreement. In the event of any conflict between this Agreement, the Terms of Service, and the Exhibits, this Agreement shall be controlling. 13. Taxpayer Bill of Rights ("TABOR"). Notwithstanding anything to the contrary contained in this Agreement, Eagle County shall have no obligations under this Agreement after, nor shall any payments be made to Diio in respect of any period after December 31 of any year, without an appropriation therefor by Eagle County in accordance with a budget adopted by the Board Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR of Eagle County Commissioners in compliance with Article 25, title Amendment (Colorado Constitution, Article X, Sec. 20). 30 of the Colorado Revised Statutes, the Local Government [END OF TERMS AND CONDITIONS] EXHIBIT A DESCRIPTION OF DIIO SERVICE The Diio Service includes the following data, tools and information: • Worldwide Airline Schedule Data • U.S. Department of Transportation ("DOT') Origin and Destination ("O&D") Data ("DB1 B") • U.S. DOT Onboard Data ("T-100") • Miscellaneous Tools • Demographics Map tool • Reference Data • Airline Codes, Names, and Alliance Members • Airline Equipment Types and Seat Counts • Airport Codes, Names, and Locations • Great Circle Route Distance Calculators 6 EXHIBIT B AUTHORIZED USER FEES Authorized User Fees for Initial Term: Number of Authorized Users Total Authorized User Fee 2 $12,000 Initial Term: One (1) year Payment Terms: Diio shall issue an invoice for the total Authorized User Fees due for the Initial Term upon the Effective Date of this Agreement. 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) 956-1389 P.O. Box 146 Fax: (703) 595-2040 Mt. Vernon, VA 22121-0146 E -Mail: eva.coo er diio.net Customer Contact information for'lnvoicin Name: Chris Anderson Address: Eagle County Regional Airport Accounts Phone: (970) 328-2680 Payable E -Mail: chris.anderson(cDeaQlecounty.us PO Box 850 E -Mail: ecaireeaglecounty.us Eagle, CO 81631 EXHIBIT C SERVICE LEVELS AND SUPPORT 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.