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HomeMy WebLinkAboutEconomic Modeling LLC dba Emsi; 2020-10-01;409 South Jackson Street Moscow, ID 83843 Tel: 208-883-3500 Fax: 208-882-3317 www.economicmodeling.com Emsi Representative: Levi Szymanowski API & Data Use Agreement This API & Data Use Agreement is made by and between Economic Modeling, LLC, a Delaware limited liability company d/b/a Emsi (“Emsi”), and City of Carlsbad of Carlsbad, California ("Licensee"). The API data will be available October 1, 2020 through September 30, 2021. Emsi will also provide Licensee with access to Emsi’s Developer application beginning October 1, 2020 and ending September 30, 2021. I.Fee Licensee shall pay Emsi a license fee of $18,000.00 for the Licensed Dataset, invoiced upon contract signature. Invoices are due 30 days from receipt. Sales tax will be added for non-tax-exempt institutions where applicable. II.API Subscription Service a. Definitions •“API” means the application programming interface that allows other software orhardware devices to interface with and access a Licensed Dataset. The API includes anyaccompanying documentation, and any revisions or updates to the API made availablefrom time to time by Emsi. •“Intellectual Property Rights” means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights. •“Licensee Application” means any software application that is developed by Licensee (ora third party on Licensee’s behalf) that utilizes the API in order to access the LicensedDataset. •“Licensed Dataset” means those portions of Emsi’s proprietary data elements provided toLicensee in the following dimensions, metrics and geographies, as well as any smallerportion thereof: API Data Region API Service Level Region Data Detail Core Data APIs National Emsi Zip Emsi County Core LMI __ MSA(s) Emsi Zip Emsi County Job Postings __ State(s) Emsi Zip Emsi County Profile Data Compensation b. License 1.Emsi hereby grants Licensee a non-exclusive, non-transferable license to utilize the API to theextent necessary to allow the Licensee Application to access the Licensed Dataset. 2.Emsi hereby grants Licensee a non-exclusive, non-transferable, limited license to use the LicensedDataset as follows: •Licensee may only use the Licensed Dataset as an analysis tool and to create acustom dashboard for internal use. 3.If Licensee’s use of the Licensed Dataset will involve third-party access to any part of the LicensedDataset, Licensee will provide Emsi with reasonable access to Licensee’s implementation of the DocuSign Envelope ID: 1EA0022A-9F85-4798-916F-D1EC7AC28442 Page 2 of 8 Licensed Dataset (e.g., website, software application, etc.) to ensure compliance with the terms of this agreement. 4. Licensee shall attribute Emsi as the source of any elements of the Licensed Dataset which are published in any format, including, but not limited to, hard copy, soft copy, web-based and online publications. c. Conditions of Use for API and Licensed Dataset 1. Development of the Licensee Application will be the responsibility of Licensee. 2. Emsi will provide up to two (2) hours of technical assistance for no additional charge. Emsi will provide additional technical assistance at $200.00 per hour. Licensee shall be responsible to make sure its equipment, network, and system meet the technical specifications necessary to run the API, and store and manage the Licensed Dataset. • “Technical assistance” means: creating examples of querying the Licensed Dataset, providing code samples of what specific API queries would send to and return from the API, and ensuring queries to Emsi APIs are structured in such a way as to return the data Licensee is requesting. • “Technical assistance” does not mean: assistance in software development beyond the scope of API queries, creating or troubleshooting data visualizations, or providing parameters or business logic from Emsi’s proprietary software products as they pertain to data, visualizations, or geographic regions. 3. In order to use the API to access the Licensed Dataset, Emsi will issue Licensee appropriate API credentials (an “API Key”). The API Key shall remain active during the term of this agreement. The API Key is confidential information. Licensee and all authorized users will be required to log in to the Licensee Application and use the API Key to access the API and Licensed Dataset and any updates or subsequent versions of the API or Licensed Dataset that Emsi may release from time to time. Updates or upgrades to the API may require Licensee to alter Licensee Applications so they work with the API. Emsi will refresh the Licensed Dataset regularly. Emsi shall provide Licensee with at least sixty (60) days’ prior written notice of any substantial update or subsequent version of the Licensed Dataset or the API, and shall cooperate and provide Licensee with such information as is necessary to permit Licensee to make necessary alterations necessary to the Licensee Applications. Emsi reserves the right to change the API on shorter notice if necessary due to a compromise to the API’s security. 4. Licensee has no rights with respect to the API or the Licensed Dataset and will not use the API or Licensed Dataset except as expressly permitted by this agreement. Licensee will not, and will require that all users of the Licensee Application do not (i) modify or create derivative works of the API; (ii) sublicense, lease, rent, assign, distribute, repackage, rebrand, or otherwise transfer or disclose the API or Licensed Dataset except as contemplated by this agreement; (iii) use the API or Licensed Dataset in connection with any product or software other than the Licensee Application or beyond the defined scope of use for the Licensee Application; (iv) distribute the API or Licensed Dataset as a stand-alone product other than as allowed by this agreement; (v) reverse-assemble the API without the prior written consent of Emsi; (vi) access, reverse engineer, or make available to any third party any interface or functionality of Emsi’s applications, servers or services not expressly included in the API, or otherwise documented by Emsi for public use; (vii) use the API or Licensed Dataset in any manner or for any purpose that violates any law or regulation, including but not limited to Intellectual Property Rights, rights of privacy, or in any manner inconsistent with the Terms and Conditions of Use or Privacy Policy associated with Emsi web sites, or this agreement; (viii) sell, lease, share, transfer, or sublicense the API or Licensed Dataset; (ix) use the API in a manner that fails to comply or is inconsistent with any part of the API documentation provided to you in connection with this agreement; (x) use the API or Licensed Dataset in a product or service that substantially replicates or competes with products or services offered by Emsi; (xi) cause, assist or permit any third party to do any of the foregoing. DocuSign Envelope ID: 1EA0022A-9F85-4798-916F-D1EC7AC28442 Page 3 of 8 5. The individual job postings may only be used for, broadly defined, the discovery, interpretation and/or communication of meaningful patterns in and/or aggregations or summaries of the respective data through software tools for any purpose, including but not limited to the calculation of aggregate statistics or use of the data for any investment purpose (individually and jointly also referred to as: "Analytics"). The use of the individual job postings or any subset, modified or derived version thereof for any other purpose than for Analytics, including but not limited to making the individual job postings available to third parties (e.g. on a website that is publicly accessible or as content in any software system) is prohibited; except that access to a limited number of individual job postings as illustrations of the use for Analytics purposes is permitted (up to a 100 individual job postings at maximum per illustration access). III. Developer Subscription Services a. Users. Emsi will provide Licensee with access to Developer for up to 1 authorized user. Authorized users must be employees of Licensee or of a partner entity specifically listed below. Emsi will issue each authorized user a unique login credential (username and password). Login credentials may not be generic (e.g., email aliases) or shared. Licensee will designate one person as the admin user, who will be authorized to manage Licensee’s authorized user list and coordinate training. b. Developer Dataset. Licensee will be provided access to the following selected United States data (“Developer Dataset”): Developer Data Detail Developer Add-Ons Region ☒ National ☒ Emsi Zip ☒ Emsi County ☒ Job Posting Analytics __ State(s) ☐ Emsi Zip ☐ Emsi County ☒ Profile Analytics __County(ies) ☐ Emsi Zip ☐ Emsi County ☒ Business Engage c. License. Licensees is granted a non-exclusive, nontransferable, non-assignable limited license to access the Developer Dataset as follows: 1. Unless otherwise stated in a written agreement, login credentials (a username and password) will be issued only to employees of a Licensee (“authorized users”). Login credentials may not be shared. Licensee will not allow access to Emsi Apps by anyone who has not been assigned login credentials by Emsi. 2. Licensee and Licensee’s authorized users may (i) download elements of the Developer Dataset using the download tools in Developer for Licensee’s internal use, and may (ii) publish static elements (e.g., tables, charts, graphs) of the Developer Dataset in work products created by Licensee in the normal course of Licensee’s business, either for Licensee or for a third party, provided that Emsi is cited as the source of the data. The citation shall be substantially in the form described in the Knowledge Base article, “How Do I Cite Emsi Data?” For clarity, Licensee may not distribute any elements of the Developer Dataset to a third party on an on-demand or standalone basis – i.e., separate from Licensee’s material contributions of data and/or effort in providing its own services to the third party. 3. Licensee may not distribute any part of the Developer Dataset to a third party in any manner that allows it to be further manipulated for that third party’s independent use. 4. Licensee may not use any automated means or form of scraping or data extraction to access, query or otherwise collect Emsi content from Developer or the Developer Dataset, or otherwise access Developer or the Developer Dataset by any automated means or process, except as expressly permitted by Emsi. 5. Neither Licensee nor Licensee’s authorized users will attempt to replicate Developer or the Developer Dataset in design, content, or functionality. 6. If Developer or the Developer Dataset includes access to individual profiles or personally identifiable information (“PII”), Licensee may only publish aggregated data that cannot be used to identify individual persons, and may not under any circumstance publish PII or data that may be manipulated or reverse engineered to create PII. 7. Profile data and PII is to be used for research purposes only and may not be used to identify or evaluate a person in a way that violates applicable employment, privacy, or other laws. DocuSign Envelope ID: 1EA0022A-9F85-4798-916F-D1EC7AC28442 Page 4 of 8 8. The individual job postings may only be used for, broadly defined, the discovery, interpretation and/or communication of meaningful patterns in and/or aggregations or summaries of the respective data through software tools for any purpose, including but not limited to the calculation of aggregate statistics or use of the data for any investment purpose (individually and jointly also referred to as: "Analytics"). The use of the individual job postings or any subset, modified or derived version thereof for any other purpose than for Analytics, including but not limited to making the individual job postings available to third parties (e.g. on a website that is publicly accessible or as content in any software system) is prohibited; except that access to a limited number of individual job postings as illustrations of the use for Analytics purposes is permitted (up to a 100 individual job postings at maximum per illustration access). Licensees may contact Emsi for permission to use the Developer Dataset in a use case not covered by these ToS. IV. Termination a. Emsi may suspend delivery of the API, the Licensed Dataset, Developer, or the Developer Dataset to Licensee during any period that Licensee fails to pay when due any fees described in this agreement, and Emsi’s delivery obligation shall not be re-instated until Licensee has paid Emsi any past due fees. b. Either party may terminate this agreement if: (i) the other party breaches a material obligation hereunder which is by its nature incurable or, if curable, remains uncured thirty (30) days after written notice describing the breach is provided to the breaching party; (ii) a receiver is appointed for the other party or its property, (iii) the other party makes an assignment for the benefit of its creditors, (iv) proceedings are commenced by or for the other party under any bankruptcy, insolvency, or debtor's relief law and not dismissed within thirty (30) days of such commencement. Either party may also terminate this agreement for convenience upon thirty (3) days’ written notice to the other (if Licensee terminates under this provision, Emsi will not refund prepaid fees). V. Representations and Warranties a. Licensee hereby represents, warrants and covenants to Emsi as follows: 1. to the best of its knowledge the Licensee Application will not (a) contain any virus, Trojan horse, worm, time bomb, cancelbot, or other computer programming routine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information; (b) create an unusually high load on Emsi’s servers; or (c) enable any user to interfere with other users’ use of Emsi applications; 2. to the best of its knowledge the Licensee Application (excluding the API) will not infringe any third party’s copyright, trade secret, or trademark rights; 3. to the best of Licensee’s knowledge, the Licensee Application (excluding the API) does not infringe the patent of any third party; and 4. in addition to the rights granted by Emsi, Licensee has all rights, permissions and licenses necessary to create and distribute the Licensee Application. b. Emsi hereby represents, warrants, and covenants to Licensee as follows: 1. that Emsi owns or has all right, title and interest to the intellectual property rights in the API and the Licensed Dataset necessary to fulfill its obligations under this agreement; 2. that Emsi has all rights, permissions and licenses necessary to create and distribute the Licensed Dataset; 3. to the best of Emsi’s knowledge no Licensed Dataset will (a) contain any virus, Trojan horse, worm, time bomb, cancelbot, or other computer programming routine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information. DocuSign Envelope ID: 1EA0022A-9F85-4798-916F-D1EC7AC28442 Page 5 of 8 VI. Disclaimers a. The data, reports, forecasts, and services provided by Emsi are generated using government data, proprietary datasets, and Emsi’s proprietary processes. Emsi generates estimates when data points are unavailable and such estimates are subject to varying degrees of error. By purchasing this data, report, product, or service, Licensee agrees that Emsi shall not be liable for economic loss arising from their use. Emsi is not liable for misuse of the data, or any planning mistakes based on the said data. b. Neither party shall, under any circumstances, be liable to the other party for any indirect, incidental, consequential, special or exemplary damages arising out of or in connection with use of the API, the Licensed Dataset, Developer, or the Developer Dataset, whether based on breach of contract, breach of warranty, tort (including negligence, product liability or otherwise), or any other pecuniary loss, whether or not such party has been advised of the possibility of such damages. EXCLUDING EMSI’S REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY AMOUNT GREATER THAN THE AMOUNT PAID TO EMSI AS SET FORTH IN THIS AGREEMENT. c. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, BY EMSI REGARDING THE API, tHE LICENSED DATASET, DEVELOPER, OR THE DEVELOPER DATASET, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VII. Protection of Proprietary Interests and Confidentiality a. “Confidential Information” means all information disclosed by or on behalf of either party to the other, which is in tangible or electronic form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information may include, without limitation, proprietary information, account data, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information. Confidential Information shall not include information that (i) was already known to the recipient at the time of disclosure by or on behalf of the disclosing party without an obligation of confidentiality; (ii) was or is obtained by the recipient from a third party not known by such recipient to be under an obligation of confidentiality with respect to such information; (iii) is or becomes generally available to the public other than by violation of this agreement; or (iv) was or is independently developed by the recipient without use of the disclosing party’s Confidential Information. b. Neither party shall use the Confidential Information of the other party for any purpose other than to the extent unavoidably necessary to fulfill the terms of this agreement. The parties shall hold Confidential Information in strict confidence and, except as required by federal and state law, including the California Public Records Act, it shall not be disclosed or used without prior written consent of the other party, except to or by those advisors, affiliates, agents, assigns, attorneys, employees, directors, officers and members with a need to know the Confidential Information for the purposes and for the uses set forth in this agreement. The parties shall require all recipients of the Confidential Information to be bound by the terms of this agreement. The parties shall use the same degree of care to protect the Confidential Information as the parties employ to protect their own information of like importance, but in no event less than a reasonable degree of care based on industry standard. c. In the event a party is requested or required by legal or regulatory authority to disclose any Confidential Information belonging to the other party, the disclosing party shall promptly notify the other party of such request or requirement prior to disclosure, if permitted by law and when reasonably practicable, so that the other party may seek an appropriate protective order or waive compliance with the terms of this agreement. In the event that a protective order or other remedy is not obtained, or a party waives compliance with these provisions, the disclosing party agrees to furnish only that portion of the Confidential Information that it reasonably determines, in consultation with its counsel, to be consistent DocuSign Envelope ID: 1EA0022A-9F85-4798-916F-D1EC7AC28442 Page 6 of 8 with the scope of the subpoena or demand, and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information (unless such efforts are rendered impracticable due to applicable law). Notwithstanding anything to the contrary, the parties may disclose, without limitation of any kind, the tax treatment and tax structure of the business transaction and all materials of any kind (including opinions or other tax analyses) that are provided to either party relating to the tax treatment and tax structure of the business transaction. d. Notwithstanding the termination of the License or the expiration of this agreement, the obligations contained in this Section shall continue and shall be ongoing obligations of the parties. VIII. Dispute Resolution, Indemnification, and Injunctive Relief a. If Licensee is accused of violating any material term of this agreement Emsi shall, prior to taking any other action allowed by law or this agreement, give written notice of the alleged violation to Licensee. Licensee shall have ten days from receipt of the written notice to respond and explain why such allegation is incorrect, cure the violation, or to notify Emsi of the steps Licensee is taking to cure the violation along with a date when the cure will be completed if the cure will take longer than ten days. If the alleged violation continues past the time to cure or if the cure does not remedy any alleged damage to Emsi caused by the violation, then Emsi may immediately terminate the license granted by this agreement and pursue such other action as Emsi determines to be necessary. If Emsi terminates Licensee’s use of the API, the Licensed Dataset, Developer, or the Developer Dataset, because of Licensee’s violation of a material term of this agreement, Licensee will not be entitled to a refund of amounts paid to Emsi under this agreement. b. Each party will indemnify, defend, and hold harmless the other, their parents, affiliates and subsidiaries, against any and all claims, suits, losses, liabilities, and judgments, including costs, expenses, damages, and reasonable legal fees arising from a third party claim and based upon and arising from the other party’s breach of any of the terms of this agreement. c. Each party will promptly notify the other of: (i) any claim, allegation, or notification of which a party has knowledge, that the Licensee Application, the API, the Licensed Dataset, Developer, or the Developer Dataset, may infringe the intellectual property rights of any other party; and (ii) any determination, discovery, or notification that any third party may be infringing the Intellectual Property Rights of either Emsi or Licensee. Each party will notify the other of any claims within a reasonable time and will have the right to participate in any such contest, defense or litigation through counsel of the party’s own choosing. Neither party will enter into any settlement in which the other party admits liability, or in connection with which the other party’s Intellectual Property Rights may be limited or compromised, without the other party’s prior written approval. d. Emsi and Licensee acknowledge that a breach, actual or threatened, of this agreement may cause irreparable harm, the amount of which may be extremely difficult to estimate, thus making any remedy at law inadequate. Either party will therefore be entitled to obtain immediate injunctive relief and any other appropriate relief from a court of competent jurisdiction without having to post a bond or other security. This right will be in addition to any other remedy available in law or equity. e. Following written notice of a claim or of a threatened or actual suit alleging that the API, the Licensed Dataset, Developer, or the Developer Dataset or any portion thereof infringes on a third-party’s rights, Emsi will at its sole expense first use good faith efforts to procure for Licensee the right to continue to market, use and have others use the allegedly infringing portion of the API, the Licensed Dataset, Developer, or the Developer Dataset; and upon failing to effect such remedy, will use good faith efforts to replace or modify the API, the Licensed Dataset, Developer, or the Developer Dataset to make it non-fringing. If Emsi replaces or modifies the API, the Licensed Dataset, Developer, or the Developer Dataset, such replacement shall meet substantially the same specifications of the API, the Licensed Dataset, Developer, or the Developer Dataset as provided in the Documentation. Absent Emsi’s election to effect any of the foregoing, Emsi shall refund to Licensee any unused subscription fees attributable to the infringing portion of the API, the Licensed Dataset, Developer, or the Developer Dataset. IX. General DocuSign Envelope ID: 1EA0022A-9F85-4798-916F-D1EC7AC28442 Page 7 of 8 a.Any notice or communication from one party to the other will be in writing and either personallydelivered or sent via certified mail, postage prepaid and return receipt requested, addressed to suchother party at the address specified in this agreement. If to Licensee: If to Emsi: _Matt Sanford___________ _1635 Faraday Ave_______ _Carlsbad, CA 92008______ Economic Modeling, LLC 409 S. Jackson St. Moscow, ID 83843 b.It is agreed that the relationship established by this agreement is solely that of an independent contractor and does not designate Licensee as the agent, legal representative, partner or joint venturerof Emsi for any purpose whatsoever. Licensee is not granted any right to create any obligation orresponsibility or make representations, express or implied, on behalf of or in the name of Emsi orregarding the API, the Licensed Dataset, Developer, or the Developer Dataset or to bind Emsi in any manner or thing whatsoever including, without limitation, to the Licensee's Sublicensees except asEmsi may specifically authorize in writing. c.Neither this agreement nor any rights under this agreement may be assigned or otherwise transferred by either party, in whole or in part without the prior written consent of the other party, which will not beunreasonably withheld; provided, however, that either party may assign its rights and obligations under this agreement in connection with a sale of assets, merger or consolidation, or similar transaction.Subject to the foregoing, this agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. d.Any waiver of the provisions of this agreement or of a party’s rights or remedies under this agreementmust be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this agreement or its rights or remedies at any time will not be construed as a waiver of such party’s rightsunder this agreement and will not in any way affect the validity of the whole or any part of this agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement byeither party of any right or remedy under this agreement will preclude the enforcement by such party of any other right or remedy under this agreement or that such party is entitled by law to enforce. e.In the event any provision of this agreement is determined to be invalid, such invalidity will not affect thevalidity of the remaining portions of this agreement, and the parties will promptly substitute for the invalid provision a valid and enforceable provision which most closely approximates the intent andeconomic effect of the invalid provision. f.Any litigation regarding interpretation or enforcement of this agreement shall be brought in the State of California, County of San Diego, and this agreement shall be interpreted according to the laws of theState of California without regard to any conflict of law provisions. g.Neither party to this agreement will be liable to the other for any failure or delay in performance under this agreement due to circumstances beyond its reasonable control including, without limitation, Acts ofGod, accident, labor disruption, acts, omissions and defaults of third parties, and official, governmental and judicial action not the fault of the party failing or delaying in performance. Licensee Contact Information (to be completed by Licensee before contract signature) Invoice Contact Admin User Name: Title: Mailing Address: Email: X.Compliance with Laws Matt Sanford Matt Sanford Economic Development ManagerEconomic Development Manager 1635 Faraday Ave Carlsbad, CA 92008 1635 Faraday Ave Carlsbad, CA 92008 matt.sanford@carlsbadca.gov matt.sanford@carlsbadca.gov DocuSign Envelope ID: 1EA0022A-9F85-4798-916F-D1EC7AC28442 Page 8 of 8 Emsi warrants that its performance under this agreement complies with all applicable laws. If at any time during the term of this agreement it becomes unlawful for Emsi to continue performance, Emsi may immediately terminate its performance under this agreement without penalty. If Emsi terminates under this section, Emsi will refund the unused portion of any prepaid fees. XI.Complete Agreement This agreement sets forth the entire agreement between Emsi and Licensee and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to the subject matter of this agreement. This agreement may not be amended, except by a writing signed by both parties. City of Carlsbad 1635 Faraday Ave Carlsbad, California 92008--7314 For Emsi: Authorized Signature Date Printed Name Economic Modeling, LLC 409 S. Jackson St. Moscow, ID 83843 For Licensee: Authorized Signature Date Printed Name APPROVED AS TO FORM Celia Brewer, City Attorney BY: _______________________ Assistant City Attorney DocuSign Envelope ID: 1EA0022A-9F85-4798-916F-D1EC7AC28442 9/30/2020 Zachary Hurt - General Counsel Maria Callander 10/1/2020