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HomeMy WebLinkAboutForecast Analytics 2019,r FORECASTS- ANALYTICS FORECAST5 TERMS OF SERVICE RECENE4 owfflt NOV 2 2 2019 j CITY CLERK- OFF Thank you for selecting the services offered by Forecast 5 Analytics, Inc. (referred to below as "Forecasts", "we", 'bur", or "us"). Please review these Terms of Service (this "Agreement") thoroughly. This Agreement is a legal agreement between Forecasts and your governmental entity (or other Forecast5 customer entity, including an individual subscriber). In most cases, a signed Customer Agreement was required to subscribe to one or more Forecast5 Services in accordance with this Agreement. If, however, a signed Customer Agreement was not required in order to get your password, then by clicking "I AGREE," indicating acceptance electronically, or accessing or using the Services, (a) you represent and warrant to Forecast5 that you are the authorized representative of the entity on behalf of which you are accessing this service, and (b) your entity hereby agrees to this Agreement. If your entity does not agree to this Agreement, then do not indicate acceptance, and do not use the Services. The applicable government entity (or other Forecasts customer entity, including an individual subscriber) is referred to below as "you" or "your." 1. AGREEMENT 1.1 Overview. This Agreement describes the terms governing your use of the Forecast5 online services provided to you through any Forecast5 website, including all data, content, updates and new releases (collectively, the "Services"). It includes by reference: a. ForecastTs Legal Notices and Privacy Policy available on this website. b. Any terms provided separately to you for the Services, including for example, ordering, activation, pricing and payment terms, if applicable, for the Services. 1.2 Your Responsibilities. Forecasts is not in the business of providing legal, financial, accounting or other professional services or advice. Consult the services of a competent professional when you need this type of assistance. You are solely responsible for the quality of all analysis and decisions you may make as a result of your use of the Services. 2. PAYMENT AND RENEWAL. Unless otherwise stated on an applicable Customer Agreement or Work Order: (a) all payments are due within thirty (30) days after the date of the applicable invoice, and (b) all subscriptions are for one (1) year. Once paid, all payments are non-refundable for any reason, including your cancellation of the Services. For all amounts not paid when due, you agree to pay an additional charge equal to one and one-half percent (1.5%) of such amounts per month or partial month during which such amounts were owed and unpaid. This Agreement also incorporates by reference all program ordering and payment terms provided to you. Forecast5 will automatically renew your annual subscriptions at the then -current rates, unless you provide notice that you do not wish to renew your subscription prior to the end of the applicable term. 3. RIGHTS TO USE THE SERVICES AND RESTRICTIONS 3.1 Ownership and License. The Services are protected by copyright, trade secret, and other intellectual property laws. You are only granted the right to use the Services, and Forecasts (or its applicable licensors or suppliers) reserves all rights of ownership in the Services not granted to you in writing here. As long as you meet any applicable payment obligations and comply with this Agreement, Forecast5 grants to you a personal, limited, nonexclusive, nontransferable, nonsublicensable right to use the Services in accordance with this Agreement that is valid only for the period of use specified, and only for your own business needs and use. 3.2 Restrictions. You agree not to use the Services or content on this website in a manner that violates any applicable law, regulation or this Agreement. For example, unless authorized by Forecast5 in writing, you agree you will not: a. Provide access to or give any part of the Services to any third party, including by means of providing your password or running reports or downloading data for the benefit of another governmental unit or any other unauthorized person or entity. b. Reproduce, duplicate, copy, deconstruct, sell, trade or resell the Services c. Attempt to access any other Forecast5 systems that are not part of your Services. If you violate any of these terms, this Agreement and your right to use the Services may be terminated by Forecast5 in its sole discretion. You acknowledge and agree that if you provide access to the Services to another governmental unit or other third party, or use the Services primarily for the benefit of any such party, then you will be liable for, among other things, additional subscription fees for each such party at the applicable Forecast5 prices. 3.3 Requirements for Public Use of Output. In addition to the right to share information in Forecast5 community forums pursuant to Section 5.4, you may use reports and other output you obtain from the Services for your own internal needs in public meetings or other public disclosures. 4. PRIVACY AND PERSONAL INFORMATION. You can view ForecastTs Privacy Policy on the Forecast5 website, or via a link on the website for the Services you have selected. You agree to be bound by the applicable Forecast5 Privacy Policy, subject to change in accordance with its terms. Most importantly, you agree to Forecast5 maintaining your data according to the Forecast5 Privacy Policy, as part of the Services. 5. SUBMITTED CONTENT AND COMMUNITY FORUMS 5.1 Submitted Content. You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Submitted Content") uploaded, posted or stored through your use of the Services. You grant Forecasts a worldwide, royalty -free, non-exclusive license to host and use the Submitted Content in order to provide you with the Services. 5.2 Restrictions on Submitted Content. You may not make any statement through our online Services, or provide or post any Submitted Content, that: a) is defamatory, threatening, obscene, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or "flaming"; b) is subject to criminal or civil liability under any local, state, federal or foreign law; c) incorporates the proprietary material of another without due authorization; d) includes advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication, or engages in spamming or flooding; e) would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual's privacy, including posting images about children or any third party without their consent (or a parent's consent in the case of a minor); or f) includes any virus, Trojan horse, worm or other disruptive or harmful software or data. 5.3 5Share Community Forums. The Services may include access to 5Share or other community forums to exchange information with other users of the Services and the public. Please use respect when you interact with other users. Forecast5 does not support and is not responsible for the accuracy of others' content in these community forums. Do not reveal information in the community forum that you do not want to make public. Users may post hypertext links to content hosted and maintained by third parties for which Forecast5 is not responsible. 5.4 Posting and Use of Data Regarding Third Parties. Forecast5 desires to promote and facilitate Forecast5 community forum discussions. Therefore, subscribers to other Forecast5 Services (such as 5Sight or 5Cast) may link, post or upload data to 5Share or other Forecasts community forums that might have ancillary benefits to parties that are not subscribers to such other Services without violating the limitations in Section 3. Similarly, the other participants in the community forum may use such posted information without first obtaining a subscription to the applicable Service that was used to generate the information. Forecast5 reserves the right to limit the amount and type of output from the Services linked, posted or uploaded if it believes parties are circumventing the requirement to obtain subscriptions to other Forecast5 Services. Any questions on this provision may be raised to the Forecast5 Community Manager. 5.5 Monitoring. Forecast5 may, but has no obligation to, monitor Submitted Content or content submitted by others. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect Forecast5 or its customers, or operate the Services properly. Forecast5, in its sole discretion, may refuse to post, remove, or refuse to remove, any Submitted Content or J content from others, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement. 5.6 Use of Feedback. You agree that Forecast5 may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant Forecast5 a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fully paid -up, royalty free license to use the feedback you provide to Forecast5 in any way. 6. ADDITIONAL TERMS 6.1 Responsibility for User Accounts and Passwords. To use the Services, you may be required to create an account and provide information about yourself to us. We will provide one or more passwords for you and/or your employees (each, a "User") to access and use the Services on your behalf. You are responsible for securely managing your passwords. If you are issued multiple passwords, each password will only be provided with access to the files for that particular password/User. You are responsible for all activities that occur in connection with your account and for maintaining the confidentiality of your account passwords. If you become aware of any unauthorized access to your Services account, theft or loss of your password, you agree to contact Forecast5 as soon as possible. You may not impersonate someone else, provide an email address other than your own, or create multiple accounts for the same individual or business. 6.2 Reasonable Cooperation. You will provide reasonable cooperation in correcting any data errors you may find and to secure and perfect our intellectual property rights in the Services. You will promptly provide all relevant facts upon becoming aware of a likelihood of infringement or other illegal use or misuse by any third party of the Services. 6.3 Audit. Upon our written request, you will provide a signed certification (a) verifying the Services are being used in accordance with the terms of this Agreement; and (b) listing the locations in which the Services are run. We may, at our expense and not more than once annually, audit your use of the Services and compliance with the terms of this Agreement, upon notice to you. Any such audit will be conducted during business hours and will not unreasonably interfere with your business activities. You will provide all reasonable assistance and information required to enable us to determine whether you are in compliance with this Agreement. If such an audit reveals you have underpaid fees, you will be invoiced for the underpaid fees based upon Forecast5's generally available price list at the time the fees would have otherwise been incurred, together with interest thereon at a rate of one and one-half percent (1.5%) per month or partial month or the highest rate allowed by law, whichever is less, during which any amounts were owed and unpaid. 6.4 Other Services. You may be offered other services, features, products, applications, online communities, or promotions provided by Forecast5 ("Forecast5 Services"). If you decide to use any of these Forecast5 Services or products, additional terms and conditions and separate fees may apply. You acknowledge that in accessing some Forecast5 Services you may upload or enter data such as names, addresses and phone numbers, purchases, and other data to the Internet. You grant Forecast5 permission to use information you provide and about your experience so that we can provide the Forecasts Services to you, monitor and analyze your use of the services, maintain and update your data, and address errors or service interruptions. We may use this data to improve services, enhance future services, identify potentially relevant offers, and produce research data. You grant Forecasts permission to combine the data you have entered or uploaded with that of others. You also grant Forecasts permission to share or publish results relating to such research data and to distribute or license such data to Forecasts customers or otherwise provided by law, provided however, that we will not sell such information to any third party that is not a Forecasts customer. 6.5 Third Party Products or Services. Subject to the Forecasts Privacy Policy, Forecasts may offer products and services on behalf of third parties who are not affiliated with Forecasts ("Third Party Products") or the Services may contain links to third party websites ("Third Party Sites").You agree that Forecasts can use your contact information, including name and address, for the purpose of offering these products to you in accordance with your stated Forecasts contact preferences. If you decide to use any Third Party Products or access any Third Party Sites, you are responsible for reviewing the third party's separate product terms, website terms and privacy policies. You agree that the third parties, and not Forecasts, are responsible for their product's performance and the content on their websites. Forecasts is not affiliated with these Third Party Products or Third Party Sites and has no liability for them. Forecasts will not sell your contact information to any Third Party, provided that Forecasts customers may have access to such contact information through the Forecasts Services offered hereunder. 6.6 Communications Choices. Forecasts may be required by law to send you communications about the Services or Third Party Products. You agree that Forecasts may send these communications to you via email. We may also send business communications such as confirmations or notices that will be delivered to you via email. You are required to receive these communications. You can choose not to receive some types of communication, such as marketing. Please review the Privacy Policy or follow instructions on the communication. 6.7 Accepting Updates. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Services. You agree to receive these updates automatically as part of the Services. 7. DISCLAIMER OF WARRANTIES 7.1 YOU ACKNOWLEDGE THAT, WHILE WE USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE USABLE DATA, THE DATASETS ARE DERIVED FROM PUBLIC SOURCES AND OTHER THIRD PARTIES AND FORECASTS CANNOT GUARANTEE THE ACCURACY, COMPLETENESS OR THE APPROPRIATENESS OF USE OF SUCH INFORMATION. IT IS UNDERSTOOD THAT FORECASTS IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OR CONTEXT OF THE INFORMATION. 7.2 FORECASTS CANNOT CORRECT DATA THAT IS OBTAINED FROM PUBLIC SOURCES OR OTHER THIRD PARTIES. YOU MUST PROVIDE CORRECTIONS TO THE APPLICABLE SOURCE IN THE MANNER PROVIDED FOR BY THAT SOURCE. PERIODICALLY FORECAST5 MAY, BUT IS NOT OBLIGATED TO, UPDATE THE SOURCE DATA. 7.3 YOUR USE OF THE SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FORECAST5, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, "SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY REGARDING THE SERVICES BEING FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON- INTERFERENCE WITH OR NON -INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES. FORECAST5 AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMTI'ED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER. 7.4 FORECAST5 AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 ("HIPAA"), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW. 8. LIMITATION OF LIABILITY AND INDEMNITY 8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF FORECAST5, AND ITS AFFILIATES AND SUPPLIERS (INCLUDING THEIR OFFICERS, DIRECTORS AND AGENTS) FOR ALL MATTERS OR CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, FORECAST5 AND ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; OR (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET FORECAST5 SYSTEM REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF FORECAST5 AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF FORECASTS AND ITS AFFILIATES, AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND ITS USE. 8.2 To the extent permitted by law, you agree to indemnify and hold Forecasts and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Services or breach of this Agreement (collectively referred to as "Claims"). Forecast5 reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Forecast5 in the defense of any Claims. 9. ESSENTIAL BASIS OF BARGAIN. You acknowledge and agree that the fees we charge reflect the overall allocation of risk between us, including by means of the provisions for limitation of liability, indemnity and exclusive remedies described in this Agreement. Such provisions form an essential basis of the bargain between us and a modification of such provisions would affect substantially the fees charged by Forecast5 hereunder. In consideration of such fees, you agree to such allocation of risk and hereby waive any and all rights, through equitable relief or otherwise, to subsequently seek a modification of such provisions or allocation of risk. 10. CHANGES TO THIS AGREEMENT OR THE SERVICES. We may change this Agreement from time to time, and the changes will be effective upon 30 days notice to you, which may include email. We may also change or discontinue the Services, in whole or in part, including but not limited to, the Internet based services, pricing, technical support options, and other product -related policies. Your continued use of the Services after the effective date of the changes, indicates your agreement to the changes. 11. TERLVIINATION. Forecast5 may immediately and without notice suspend or permanently discontinue the Services provided to you, if you fail to comply with this Agreement, or if you no longer agree to receive electronic communications (see Section 6.6). You may also terminate your subscriptions in accordance with Section 2. Upon termination you must immediately stop using the applicable Services. Any termination of this Agreement shall not affect ForecastTs rights to any payments due to it. Forecast5 may terminate a free Service/account at any time. Other requirements regarding termination or cancellation of the Services may apply based on the specific ordering terms for the Services provided to you. Sections 1, 2, 4, 5.1, 5.4, and 7 through 14 will survive and remain in effect even if the Agreement is terminated, cancelled or rescinded. 12. GOVERNING LAW, JURISDICTION, LEGAL FEES, ETC. Illinois state law governs this Agreement without regard to its conflicts of laws provisions. With respect to any suit, action or proceeding relating to this Agreement the undersigned irrevocably submits to the jurisdiction of the federal court located in Chicago, Illinois or state court in DuPage County, Illinois, which submission shall be exclusive unless (a) none of such courts has lawful jurisdiction over such proceedings, (b) we elect to pursue injunctive relief in another court having jurisdiction. Forecast5 prohibits accessing materials from countries or states where contents are illegal. You are accessing this website on your own initiative and you are responsible for compliance with all applicable laws. In the event of legal action to enforce rights under this Agreement, all costs and expenses incurred by the prevailing party, including reasonable attorneys' fees and court costs, will be paid by the other party. BOTH PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT. 13. NO WAIVER. No failure on the part of either of us to exercise, and no delay in exercising, any right, power, or privilege will operate as a waiver thereof; nor will any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The waiver by either of us of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. 14. GENERAL. This Agreement is the entire agreement between you and Forecast5 and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as provided in this Agreement in Section 10 above. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that provision will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. This Agreement is an agreement between the Parties, and confers no rights upon any of the Parties' employees, agents, contractors or customers, or upon any other person or entity, except as may be set forth in Sections 2.5, 7 or 8. The words "hereof," "herein" and "hereunder" and other words of similar import refer to this Agreement as a whole, as the same may from time to time be amended or supplemented, and not to any subdivision contained in this Agreement. The word "including" when used herein is not intended to be exclusive and means "including, but not limited to." The word "or" when used herein is not intended to be exclusive unless the context clearly requires otherwise. You cannot assign or transfer ownership of this Agreement to anyone without the prior written approval of Forecast5. However, Forecast5 may assign or transfer it without your consent to (a) a Forecasts affiliate, (b) another company through a sale of assets by Forecast5 or (c) a successor by merger. Any assignment in violation of this Section shall be void. Last Revised: August 16, 2013 FORECASTS" ANALYTICS CUSTOMER AGREEMENT This Customer Agreement is entered into by Forecast 5 Analytics, Inc., a Delaware corporation ("Forecasts'), and Customer (named below), and will commence on the Effective Date indicated below. FORECASTS Service 4002004 4002004 4002004 Service Description 5Cast Plus (2 Users) FY 2020 5Cast Plus (2 Users) FY 2021 5Cast Plus (2 Users) FY 2022 Price Discount Total Cost $15.000.00 $1,500.00 $13,500.00 Invoice After $13,500.00 1 /112020; $15.000.00 $1,500.00 $13,500.00 Invoice After $13,500.00 11112021: $15,000.00 $1,500.00 $13,500.00 Invoice Aker $13,500.00 1/1/2022: Total Amount $40,500.00 Due: The above Services are provided pursuant to the Forecast5 Terms of Service (available at www.forecast5analytics.com/about/termsofservice), which are Incorporated herein by this reference. Customer and Forecast5 may from time to time agree upon additional Services pursuant to a mutually agreed Work Order. All subscriptions (even if purchased after your Effective Date, such as Additional User subscriptions) will be coterminous and end on the applicable anniversary of your Effective Date. Customer acknowledges and agrees that if it provides access to the Services to another governmental unit or other third party, or uses the Services for the benefit of any such party, then It will be liable for, among other things, additional subscription fees for each such party at the applicable Forecast5 prices. At the request of the Customer, Forecast5 may provide opinions or representations with respect to the financial feasibility and/or fiscal prudence of assumptions and/or projections that Customer may select for inclusion in 5Cast financial projections, provided, however, that it is understood that the Customer is solely responsible for the decision and any associated risk of incorporating any particular assumption in its financial plan. Additionally, Forecast5 duties and responsibilities do not include giving any opinion or advice regarding the issuance of debt instruments. EXPIRATION DATE: 1213112022 (All subscriptions are for periods of 1 year, unless indicated otherwise). Customer: City of Oshkosh, WI Signature: Name: Title; FORECAST 5 ANALYTICS, INC. Signature: Name: Michael R. Engh Title: CEO 2135 CiryGate Lane, 7th Floor Naperville, Illinois 60563 2135 CITYGATE LANE, TTH FLOOR, NAPERVILLE, ILLINOIS 60563 1 FORECAST5ANALYTICS.COM IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed by their respective proper officers and affixed their corporate seals hereto as of the day and year first above written. CONSULTANT (Name/Title) CITY OF OSHKOSH MAAK A. ROHLOFF PAMELA R. UBRIG CITY MANAGER CITY CLERK APPROVED BY: I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract ' 1 v_ LLOR SO RUSS VAN GOI1�F3. EL CITY A ORNEY FINANCE DIRECTOR