The following Terms of Service (Terms) apply to the Licensee to the extent the specific Service is included in the applicable ordering document (Order Form). AirDNA, a California LLC with offices located at 1321 15th Street Denver, CO 80202 is the ("Licensor") of the Data Services referred to in these terms and associated Order Forms. Licensor may update these Terms and Conditions  from time to time. AirDNA reserves the right to upgrade, update or discontinue any aspect or feature of a Data Service in whole or in part; provided, however, that if AirDNA discontinues a Data Service in whole during the term of an ordering document, then AirDNA will provide Licensee with an alternative or replacement Data Service.

 (a) License Grant. Subject to and conditioned on Licensee's payment of Fees and compliance with all other terms and conditions of this Order Form, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 9(g) license during the Term to use the Data Services (Data) solely for the permitted use set forth in theOrder Form. The total number of users/amount of usage by the Licensee will not exceed the limits set forth in the Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the fees payable. 

(b) Use Restrictions. Licensee shall only use the Data for the Permitted Use and shall not disclose, release, distribute, or deliver the Data, or any portion thereof, to any third party without Licensor's prior written consent. Any purpose or use not specifically authorized herein is prohibited unless otherwise agreed to in writing by the Licensor. Without limiting the foregoing and except as otherwise expressly set forth in these Terms of Service (Terms), Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Data, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Data; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Data or methods used to compile the Data, in whole or in part; (iv) remove any proprietary notices included within the Data; (v) publish, enhance, or display any compilation or directory based upon information derived from the Data; or (vi) use the Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. 

(c) Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in the Order Form. Except for the limited rights and licenses expressly granted under the Order Form, nothing in the ordering document (Order Form), by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Data. 

(d) Delivery. Licensor shall deliver the Data to Licensee electronically, on tangible media, or by other means, in Licensor's sole discretion, according to the delivery schedule terms agreed in the Order Form by the parties.

(a) Fees. Licensee shall pay Licensor the fees ("Fees") set forth in the Order Form without offset or deduction. Licensee shall make all payments agreed in the Order Form in the currency referred in the Order Form on or before the due date set forth in the Order Form. If Licensee fails to make any payment when due, in addition to all other remedies that may be available: (i) Licensor may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Licensee shall reimburse Licensor for all reasonable costs incurred by Licensor in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days following written notice thereof, Licensor may prohibit access to the Data until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Licensee or any other person by reason of such prohibition of access to the Data.  If the Licensee is paying by a credit card, the Licensee waives its right to contest a charge deemed due under these terms.

(i.) Taxes. All Fees and other amounts payable by Licensee under this Order Form are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor's income.

(b) Auditing Rights and Required Records. Licensee agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of Two(2) years after the termination or expiration of this Order Form with respect to matters necessary for accurately determining amounts due hereunder. Licensor may, at its own expense, on reasonable prior notice, periodically inspect and audit Licensee's records with respect to matters covered by this Order Form, provided that if such inspection and audit reveals that Licensee has underpaid Licensor with respect to any amounts due and payable during the Term, Licensee shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 2(a). Licensee shall pay for the costs of the audit if the audit determines that Licensee's underpayment equals or exceeds 20% of the amount due for any quarter. Such inspection and auditing rights will extend throughout the Term of this Order Form and continue for a period of Two(2) years after the termination or expiration of this Order Form. 

3. Confidential Information and Data Security

(a) Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Without limiting the foregoing, for purposes of this Order Form, the Data will be deemed Confidential Information of Licensor. Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party's rights under this Order Form, including to make required court filings. On the expiration or termination of this Order Form, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Order Form for as long as such Confidential Information remains subject to trade secret protection under applicable law. 

(b) Data Security. Licensee shall use all reasonable legal, organizational, physical, administrative, and technical measures and security procedures to safeguard and ensure the security of the Data and to protect the Data from unauthorized access, disclosure, duplication, use, modification, or loss, including without limitation, the requirements contained set forth in the Order Form and these Terms.

Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights, in and to the Data. Licensee further acknowledges that: (a) the Data is an original compilation protected by United States copyright laws; (b) Licensor has dedicated substantial resources to collect, manage, and compile the Data; and (c) the Data constitutes trade secrets of Licensor. Licensor may terminate the Order Form as set forth in the Terms without advance notice to Licensee or an opportunity for Licensee to cure and without further obligation or liability/Licensee acknowledges and agrees that it will be considered a material breach by Licensee under this Order Form if Licensee contests any of Licensor's right, title, or interest in or to the Data, including without limitation, in a judicial proceeding anywhere throughout the world.

THE DATA IS PROVIDED "AS IS" AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE DATA, OR ANY PRODUCTS OR RESULTS OF ITS USE, WILL MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. 

     (a) Explicit Disclaimer for Data Accuracy. Licensor explicitly does not warrant the completeness or accuracy of any Data contained in its products as the Data is compiled from a number of Data sources.  The Licensee acknowledges this disclaimer and waives any legal claims for damages if the Data in the product ultimately is proved inaccurate or incorrect.

(i) Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys' fees) ("Losses") incurred by Licensee resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that Licensee's Permitted Use of the Data infringes or misappropriates such third party's US intellectual property rights/US patents, copyrights, or trade secrets, provided that Licensee promptly notifies Licensor in writing of the claim, cooperates with Licensor, and allows Licensor sole authority to control the defense and settlement of such claim. 


(ii) If such a claim is made or appears possible, Licensee agrees to permit Licensor, at Licensor's sole discretion, to (A) modify or replace any such infringing part of feature of the Data to make it non-infringing, or (B) obtain rights to continue use. If Licensor determines that none of these alternatives are reasonably available, Licensor may terminate this Order Form, in its entirety or with respect to the affected part or feature of the Data, effective immediately on written notice to Licensee.


(iii) This Section 6(a) will not apply to the extent that the alleged infringement arises from (A) use of the Data in combination with data, software, hardware, equipment, or technology not provided by Licensor or authorized by Licensor in writing or (B) Licensee's violation of Section 1(b) of this Order Form. 

(b) Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at Licensor's option, defend Licensor from and against any Losses resulting from any Third-Party Claim based on Licensee's: (i) negligence or willful misconduct; or (ii) use of the Data in a manner not authorized by this Order Form, provided that Licensee may not settle any Third-Party Claim against Licensor unless such settlement completely and forever releases Licensor from all liability with respect to such Third-Party Claim or unless Licensor consents to such settlement, and further provided that Licensor shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(c) Sole Remedy. THIS SECTION 6 SETS FORTH LICENSEE'S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE DATA INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

 IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS Order Form UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (c) LOSS OF GOODWILL OR REPUTATION, (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA OR BREACH OF DATA OR SYSTEM SECURITY, OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS Order Form, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED ONE TIMES THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO LICENSOR UNDER THIS ORDER FORM IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

(a) Term. The term of this Order Form begins on the Start Date stated in the Order Form and, unless terminated earlier pursuant to any of this Order Form's express provisions, will continue in effect for the term of this Order Form mentioned in the Order Form from such date (the "Start Date of the Order Form"). This Order Form will automatically renew for the same duration as set under the terms of this Order Form in the Order Form, unless earlier terminated pursuant to this Order Form's express provisions or either Party, gives the other Party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term"). At the time of renewal, a 5% increase to the contract will be applied.

(b) Termination. In addition to any other express termination right set forth elsewhere in this Order Form:

(i) Licensor may terminate this Order Form, effective on written notice to Licensee, if Licensee: (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Licensor's delivery of written notice thereof; or (B) breaches any of its obligations under Section 1(b) or 3;


(ii) either Party may terminate this Order Form, effective on written notice to the other Party, if the other Party materially breaches this Order Form, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or


(iii) either Party may terminate this Order Form, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Order Form as set in the Order Form, the license granted in the Order Form will also terminate, and, without limiting Licensee's obligations under 3, Licensee shall cease using and delete, destroy, or return all copies of the Data and certify in writing to the Licensor that the Data has been deleted or destroyed. No expiration or termination will affect Licensee's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.

(d) Survival. Any rights, obligations, or required performance of the parties in this Order Form which, by their express terms or nature and context are intended to survive termination or expiration of this Order Form as set forth in the Order Form, will survive any such termination or expiration, including the rights and obligations set forth in this Section 8(d) and 2, 3, 4, 6, 7, and 9. 

(a) Entire Order Form. This Order Form, together with the Order Form executed by the Licensee constitutes the sole and entire Order Form of the Parties with respect to the subject matter of this Order Form and supersedes all prior and contemporaneous understandings, Order Forms, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Order Form, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms; (ii) second, the Order Form as of the Start Date.

(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on Order Form  (or to such other address that may be designated by each Party from time to time in accordance with this Section). The Parties shall deliver Notices by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in the Order Form, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c) Force Majeure. In no event shall Licensor be liable to Licensee, or be deemed to have breached these terms, for any failure or delay in performing its obligations under these terms, (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond Licensor's reasonable control, including, without limitation, the following force majeure events: (i) acts of God; (ii) flood, fire, earthquake, OTHER POTENTIAL DISASTER(S) OR CATASTROPHE(S), SUCH AS PANDEMICS OR EPIDEMICS, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of these terms; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities; (ix) significant interruption or elimination of data sources;and (x) other similar events beyond the reasonable control of the Party.

(d) Amendment and Modification; Waiver. No amendment to or modification of these terms is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these terms will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Severability. If any provision of these terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Order Form or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these terms so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(f) Governing Law; Submission to Jurisdiction. The terms of this Order Form is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to this Order Form or the licenses granted in the Order Form and Terms will be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, in each case located in the city of Denver and County of Denver, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

(g) Assignment. Licensee may not assign or transfer any of its rights or delegate any of its obligations in the Order Form, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Licensor, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Order Form is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(h) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3 or, in the case of Licensee, Section 1(b) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

The following Terms of Service for AirDNA enterprise data apply to the Licensee to the extent the specific Service is included in the applicable ordering document (Order Form).

Enterprise Terms & Conditions