A. The Economic Innovation Group, Inc., a Delaware nonprofit corporation with a principal place of business at 616 H Street NW, Suite 550, Washington DC 20001 (“EIG”), has created a customized dataset measuring and comparing economic conditions throughout the United States and made up of a custom dataset, interactive maps, and report materials, which captures data from more than 25,000 zip codes as well as counties, cities, congressional districts, and states (the “Distressed Communities Index”);
B. Licensee has requested a license to use certain datasets that form a part of the Distressed Communities Index (as further described below, the “Licensed Datasets”) for purposes that are consistent with EIG’s mission of forging a more dynamic, entrepreneurial, and inclusive economy.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, EIG and Licensee hereby agree as follows:
1. Grant of License.
a. Subject to the terms and conditions of this Agreement, EIG hereby grants to Licensee a limited, nonexclusive, non-transferable, non-sublicensable, and revocable license to download and use the Licensed Datasets hereto solely for the Permitted Purposes (as defined below).
b. In consideration of the license granted under this Section 1, Licensee will, concurrently with the digital execution and delivery of this Agreement by Licensee, digitally pay to EIG a non-refundable, initial royalty fee in the amount set forth and agreed to on its webpage.
c. Notwithstanding such delivery, the Licensed Datasets and the trademarked Distressed Communities Index shall be the sole and exclusive property of EIG.
b. Personnel. “Personnel” includes all employees, agents, and representatives employed by licensee. Before providing the Licensed Datasets to its Personnel, Licensee must ensure that each such individual acknowledges that he or she understands the terms and conditions of this Agreement and agrees to abide by them. Licensee agrees to limit the dissemination of this dataset to Personnel who require it. Licensee shall be responsible for any breach of the terms of this Agreement by any of its Personnel.
c. Permitted Purposes. For purposes of this Agreement, “Permitted Purposes” means Licensee’s and its Personnel’s own analytical purposes to further academic objectives or organizational mission. Under no circumstances shall Permitted Purposes include marketing or commercial purposes, lobbying, or supporting or opposing any candidate for elective office. Notwithstanding anything to the contrary set forth in this Agreement and for avoidance of doubt, under no circumstances may Licensee sublicense, sell or market for sale or license any product or service that includes the Licensed Datasets.
3. Proprietary Information and Non-Disclosure.
Licensee acknowledges that the Distressed Communities Index, including the Licensed Datasets, constitute confidential and proprietary information of EIG. Licensee agrees that, except as required by law, subpoena or summons, it will not disseminate, disclose to a third party or use for any purpose other than as permitted under this Agreement, any of the Licensed Datasets. The foregoing will not prevent Licensee from disclosing any specific information that (a) was previously known to it and not subject to any obligation of confidentiality, (b) is or becomes publicly known through no breach of this paragraph, (c) is rightfully received from a third party and not subject to any known obligation of confidentiality, or (d) is independently developed without use of the Licensed Datasets or the Distressed Communities Index.
4. Representations and Warranties; Covenants; Limitation of Remedies.
a. Mutual Representations and Warranties. Each party represents and warrants to the other party that (i) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has the right and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereunder; (iii) this Agreement is a legal, valid and binding agreement of the party and enforceable against it; (iv) the execution and delivery of this Agreement will not, to each party’s knowledge, violate any statute, regulation or any other restriction upon the party; and (v) it has secured all requisite authorizations, licenses and approvals necessary for the execution, delivery and performance of this Agreement.
b. Additional Covenants of Licensee. In addition to all other agreements of Licensee set forth in this Agreement, Licensee hereby covenants and agrees as follows:
(i) Licensee will use the Licensed Datasets only in compliance with this Agreement, and will not use any part of the Licensed Datasets for commercial or marketing purposes, or enable others to use the foregoing for such purposes;
(ii) Only Licensee’s Personnel will be provided with access to the Licensed Datasets. Licensee has in place and will maintain adequate security policies and procedures to ensure that only such authorized individuals may access and use the Licensed Datasets; and
(iii) Licensee will monitor compliance by its Personnel with the terms of this Agreement.
c. Restricted Activities. To the best of Licensee’s knowledge and belief, Licensee’s and its Personnel’s use of the Licensed Datasets shall not: (a) infringe any third party’s privacy, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation; (c) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) be obscene. Licensee will use its best efforts to ensure that the foregoing remains true during the term of this Agreement.
d. Limited Warranty. THE LICENSED DATASETS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE FULL EXTENT PERMITTED BY LAW, THE WARRANTIES SET FORTH IN THIS SECTION 4 ARE THE EXCLUSIVE WARRANTIES PROVIDED BY EIG AND ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, UNDERTAKINGS OR TERMS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY OPERATION OF LAW, ARISING BY STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, AND/OR LACK OF WORKMANLIKE EFFORT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING PERFORMANCE, QUALITY OR RESULTS FROM USE OF THE LICENSED DATASETS WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE BINDING ON EIG. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE ACKNOWLEDGES AND AGREES THAT EIG DOES NOT GUARANTEE THE ACCURACY OR RELIABILITY OF THE INFORMATION PROVIDED IN THE LICENSED DATASETS OR THE DISTRESSED COMMUNITIES INDEX, AND EIG MAKES NO WARRANTY THAT THE LICENSED DATASETS WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY HAVE, OR THAT THE ACCESS SPECIFICATIONS WILL OPERATE ERROR-FREE OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE LICENSED DATASETS WILL BE CORRECTED, OR THAT THE ACCESS SPECIFICATIONS ARE COMPATIBLE WITH ANY PARTICULAR PLATFORM.
e. Limitation of Remedies. EXCEPT WITH REGARD TO THE UNAUTHORIZED USE OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EIG OR LICENSEE BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSE (INCLUDING LOST PROFITS, OPPORTUNITY COSTS, ETC.) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE.
If Licensee or its Personnel breach any obligations, representations or warranties under this Agreement, EIG may terminate this Agreement by providing written or electronic notice of such termination to Licensee. Licensee may terminate this Agreement by giving written or electronic notice of termination to EIG. Upon any termination of this Agreement, all of Licensee’s rights under Section 1 will terminate and, consequently, Licensee will cease use of the Licensed Datasets and will either destroy or return to EIG all copies of the Licensed Datasets that are in the possession of Licensee or its Personnel. Termination of this Agreement by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party from any liability for breach of such obligations under this Agreement. The terms of Sections 2, 3, 4(d) and (e), 6, 8, 9 and this Section 5 will survive the expiration or termination of this Agreement for any reason.
6. Ownership of Intellectual Property.
Notwithstanding the license and delivery of the Licensed Datasets as provided hereunder, the Licensed Datasets, Distressed Communities Index, and all updates to and new versions of any of the foregoing, together with the copyright, trademarks, and any other intellectual property rights in and to all of the foregoing, are and shall remain the sole and exclusive property of EIG. Licensee acknowledges and agrees that, other than as expressly provided in Sections 1, 2 and 3, Licensee has no rights or claims of any type, by virtue of this Agreement or otherwise, to any proprietary, intellectual property, or other rights or interest whatsoever in the Licensed Datasets or any other intellectual property of EIG, and Licensee irrevocably waives and releases any claim to title and ownership rights thereto. Licensee agrees not to take any actions inconsistent with EIG’s exclusive ownership of and exclusive right, title and interest and goodwill regarding the Marks, Licensed Datasets, the Distressed Communities Index, and all updates to and new versions of any of the foregoing. All rights not expressly granted herein are reserved by EIG. The parties will cooperate with each other to execute any documents necessary to achieve the objectives of this paragraph.
a. Licensee and its Personnel may publish or publicly present the results of their analyses using the Licensed Datasets only in accordance with the terms of this Section 7(a). Any publication or presentation by Licensee or its Personnel using or including any of the Licensed Datasets shall include: (i) an acknowledgment of EIG as the source of such Licensed Datasets, stating “Source: The Economic Innovation Group’s Distressed Communities Index” denoting applicable years; and (ii) a disclaimer stating, with such bracketed language as applicable, that “The [findings/opinions] expressed in this [publication/presentation] are solely those of [insert name of Licensee] and not necessarily those of The Economic Innovation Group. The Economic Innovation Group does not guarantee the accuracy or reliability of, or necessarily agree with, the information provided herein.”
b. Subject to Licensee’s compliance with Section 7(a), Licensee shall provide EIG with written notice promptly after any material is published by Licensee or its Personnel that uses any of the Licensed Datasets. Licensee shall provide EIG with a written or electronic copy of any such materials.
a. Licensee will indemnify, defend and hold harmless EIG and its employees, officers, directors and agents (collectively, the “EIG Indemnified Parties”) from and against any loss, damage, expense or liabilities (collectively, “Losses”) that may result from any third party claims arising out of Licensee’s (i) use, modification or disclosure of the Licensed Datasets, (ii) negligence, recklessness or intentional misconduct, (iii) intellectual property infringement or violation of privacy rights arising out of any information or other material supplied by Licensee and/or its employees, or (iv) breach of any representation or warranty of Licensee set forth in this Agreement, and will reimburse EIG for all expenses (including reasonable attorneys’ fees) as incurred by EIG Indemnified Parties in connection with any such action or claim, except to the extent any such claim is finally determined to have resulted from the negligence, recklessness or intentional misconduct of EIG.
b. To make a claim for indemnification under this Section 10, the EIG Indemnified Party will promptly notify Licensee in writing of a claim or suit and will provide reasonable cooperation (at the Licensee’s expense) and full authority to defend or settle the claim or suit; provided, however, that Licensee may not settle any claim or suit against an EIG Indemnified Party without the written consent of the EIG Indemnified Party (which will not be unreasonably withheld or delayed) and that the failure to furnish notice of any claim or suit will not limit Licensee’s indemnity obligations under this Agreement except to the extent such failure materially prejudices Licensee’s ability to defend the claim or suit.
a. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and may not be amended except by written agreement signed by EIG and Licensee.
b. Choice of Law/Venue. This Agreement will be binding upon execution by each party, and will be governed in all respects by the state and federal laws of the District of Columbia and the United States of America, without reference to choice of law rules. All actions arising under this Agreement shall be brought exclusively in the state and federal courts sitting in the District of Columbia and each of the parties hereby agrees to submit to the exclusive venue and personal jurisdiction of such courts.
c. Taxes. Any sales, use or other similar taxes charged on the license or use of goods and services by Licensee shall be the sole responsibility of, and paid by, Licensee.
d. Severability. If any term or provision of this Agreement or any exhibit or schedule to this Agreement is found by a court of competent jurisdiction to be illegal, invalid, or otherwise unenforceable, such term or provision will not affect any other terms or provisions, but such term or provision will be deemed stricken from this Agreement, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and the agreements of the parties.
e. Independent Contractor. Each party is an independent contractor, and no party will have the authority to bind, represent or commit the other. Nothing in this Agreement will be deemed or construed to create a joint venture, partnership, employment or agency relationship between the parties for any purpose.
f. Assignment. Licensee may not assign its rights or obligations in whole or in part without EIG’s prior written consent, and any unauthorized purported assignment shall be null and void.
g. Notices. All notices hereunder shall be in writing unless expressly provided otherwise, and shall be delivered to the parties at the address first set forth above or to the address provided, as applicable: (i) by registered or certified mail, postage prepaid, (ii) by overnight courier service, or (iii) by facsimile, electronic mail or similar means. Notices shall be effective on the third business day following the date of mailing, and upon receipt if sent by overnight courier service or by confirmed facsimile, electronic mail or similar means. Notice of breach may only be sent (i) by registered or certified mail, postage prepaid, or (ii) by overnight courier service. A party may change its address or other contact information listed above by written notice to the other party in accordance with this Section 9(g).
h. Counterparts. This Agreement may be executed via facsimile, email or similar electronic means and in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument.
i. Remedies. In the event Licensee or its Personnel breaches, or threatens to breach, any of the covenants expressed herein in respect of EIG’s proprietary or confidential information, its Marks or other intellectual property, the damages to EIG will be great and irreparable and difficult to quantify; therefore, EIG shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without disentitling EIG from any other relief in either law or equity.
j. Further Assurances. Upon the reasonable request of any party hereto, the other party shall execute and deliver or cause to be executed and delivered such further instruments and take such further action as the requesting party may reasonably request in order to effectuate fully the purposes, terms and conditions of this Agreement.
k. Rules of construction. The section headings in this Agreement are for convenient reference only, and will be given no substantive or interpretive effect. With respect to all terms used in this Agreement, words used in the singular include the plural and words used in the plural include the singular. The word “including” means “including, without limitation,” and the words “herein”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections and Exhibits mean the Sections of and the Exhibits attached to this Agreement; and (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time, to the extent provided by the provisions thereof and by this Agreement.