Cascade General Terms and Conditions

1.       Proposal

1.1.    Agreement. The Proposal executed by Customer and Cascade is governed by and incorporated with these Cascade General Terms and Conditions, which may include attached appendices and Exhibits (the “Terms”). The Proposal, together with the Scope of Work or Service Order (“SOW” or “SO”), if any, and the Terms, constitutes a separate, legally binding agreement between the Parties (the “Agreement”).

1.2.    Precedence. In the event of a conflict between a Proposal and these Terms, these Terms shall govern unless the Proposal expressly identifies the Parties’ intent to modify these Terms. Any modification of the Terms identified in a Proposal shall have effect only with respect to such Proposal and shall have no effect on any other proposal or SOW.

1.3.    Definitions. Capitalized terms not defined in (a) context within these Terms or (b) Appendix A: Definitions, have the meanings given to them in the Proposal.

1.4.    Product-Specific Terms. The attached Exhibits shall apply to the Proposal as follows:

1.4.1.If Customer purchased Cloud Services, the Terms for Cloud Services Exhibit shall also apply.

1.4.2. If Customer purchased hardware or Third-Party Materials, the Terms for Third-Party Materials Exhibit shall also apply.

2.       Term & Termination.

2.1.    Proposal and Agreement. For each Proposal, the Agreement will start on the Effective Date and continue in full force and effect (a) with respect to Products other than Subscription Services, until each Parties’ obligations with respect to a particular Product have been fulfilled, and (b) with respect to Subscription Services, until the Subscription Period has expired, in each case, unless a Party terminates the Proposal, in whole or with respect to a particular Product, in accordance with these Terms.

2.2.    Subscription Periods. Each Subscription Service subscribed to under the Proposal shall commence on the Commencement Date identified in the Proposal for the specific Subscription Service and continue through the Subscription Period. Each Subscription Period will automatically renew for subsequent Renewal Periods unless a Party gives notice of non-renewal for the specific Subscription Service(s) to the other Party at least 60 days prior to expiration of the then-current Subscription Period.

2.3.    Termination. The termination rights set forth in this Section 2.3 are subject to any additional or modified termination requirements expressly set forth in the applicable Proposal or SOW, which shall control in the event of a conflict.

2.3.1.Material Breach. In the event of a Party’s material breach of the Agreement, the non-breaching Party may terminate the Proposal in its entirety or in part with respect to one or more Products:

2.3.1.1.              30 days after delivering written notice to the other Party reasonably explaining the other Party’s material breach unless the breaching Party cures such breach within the 30-day period;

2.3.1.2.              Immediately upon written notice if the other Party materially breaches the Agreement in a manner that cannot be cured.

2.3.2.Bankruptcy. Either Party may terminate the Proposal in its entirety effective immediately upon written notice if the other Party (i) dissolves or stops conducting business without a successor; (ii) makes an assignment for the benefit of creditors; or (iii) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.

2.3.3.For Convenience. With respect to Services that are not Subscription Services, by providing 90 days’ prior written notice of termination, unless the SOW or Proposal expressly states such Services cannot be terminated. Notwithstanding the foregoing, Customer shall remain liable for any Services performed until the effective date of termination; provided, however, Customer be liable for any non-refundable or non-recoverable out-of-pocket, documented expenses Cascade has incurred with respect to such Services, even if such expenses have not been itemized in the Proposal.

2.3.4.Force Majeure. Neither Party will be liable for delay or failure to fulfill their obligations caused by a Force Majeure Event. The affected Party shall provide notice to the other Party as soon as feasible following the occurrence of a Force Majeure Event and shall use best efforts to promptly recommence performance of its obligations. Either Party may terminate a Proposal in whole or with respect to one or more affected Products upon written notice to the other Party if a Force Majeure Event prevents the other Party from substantially performing its obligations for 30 or more consecutive days. A Force Majeure Event does not excuse Customer’s obligation to pay Fees accrued prior to termination. Cascade will pay to Customer a prorated refund of any prepaid Fees for the remainder of the Subscription Period. Any termination under this Section 2.3.4 is without cause.

2.3.5.Effect of Termination. Upon any expiration or termination:

2.3.5.1.              Customer will no longer have any right to use the terminated Products and must immediately cease use.

2.3.5.2.              Cascade will delete Customer Data within 90 days after receipt of Customer’s written request.

2.3.5.3.              Unless set forth otherwise in the SOW, Cascade will deliver all Deliverables and all Work Product completed prior to termination.

2.3.5.4.              Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control. The Recipient may retain reasonable copies of the Confidential Information for compliance with applicable laws, rules, or regulations, bona fide data retention policies, or to establish its rights under this Agreement.  Any Confidential Information that cannot be returned or destroyed (such as oral Confidential Information) shall remain confidential, subject to the terms of this Agreement for the term hereof.

2.3.5.5.              Cascade will submit a final bill or invoice for all outstanding Fees and other amounts accrued before termination, and Customer will pay the invoice according to the Proposal.

2.4.    Survival. Each provision in the Agreement that expressly or by its nature provides for rights, obligations, or remedies that extend beyond this Agreement’s expiration or termination will survive and continue in full force and effect after this Agreement expires or is terminated.

3.       Fees and Payment. Customer will pay Cascade the fees shown in the pricing section of the Proposal.   All fees are payable upon receipt of invoice, net 30.

Fees are exclusive of consumption taxes. Any applicable taxes will be stated separately on the invoice. Customer agrees either to pay the amount of the taxes to Cascade or provide the evidence necessary to demonstrate an exemption from the State and local taxes.

Without limiting its rights or remedies, Cascade shall have the right to halt or terminate entirely its services if payment is not received on past-due invoices. In the event of non-payment, Cascade may resort to legal action and / or third-party collection services, and Customer shall be responsible for costs and fees associated with those collection activities.

4.       Performance of Services. Cascade will perform the Services as detailed in the SOW or Proposal. To the extent Cascade Personnel perform Services or other activities at Customer’s facilities, such Services or activities will be coordinated in advance, subject to Customer’s supervision, undertaken in accordance with Customer’s standard policies and procedures provided in writing prior to Cascade’s commencement of on-site Services or activities, and undertaken in a manner so as not to unreasonably disrupt the Customer’s normal business operations.

Customer will reasonably cooperate with Cascade to permit Cascade’s performance of Services. Cascade is not responsible for Cascade’s inability to perform the Services to the extent such inability is caused by Customer’s failure to cooperate as reasonably requested by Cascade. Cascade will provide its own equipment and tools to perform the Services.

5.       Change Orders.  The Parties may amend any SOW only by entering into a Change Order. If a Party requests a Change Order, the other Party will review and consider the proposed changes in good faith and respond to the Change Order request within a reasonable timeframe. Cascade shall not be obligated to perform additional or different services, and Customer shall not be obligated to pay different amounts, unless and until the Parties execute a Change Order.  Each Change Order is governed by and incorporated with the Agreement.

6.       Use of Customer’s Computer Network. If Cascade accesses Customer’s computer network, Cascade agrees Cascade will (a) do so only for the purpose of providing Services and not for any other purposes; (b) not knowingly access any information that is confidential or proprietary to Customer unless Cascade has a “need to know” such information in order to perform Cascade’s obligations under the Agreement; (c) not disclose any such information that Cascade may have accessed to any other person other than to Customer or other Personnel with a “need to know” in order to perform Cascade’s obligations hereunder; and (d) not knowingly introduce Malicious Code into Customer’s computer network.

7.       Subcontractors. Cascade may use Subcontractors, including sub processors as applicable, to perform or provide the Products. If Cascade uses Subcontractors, Cascade is responsible for (a) all acts and omissions of its Subcontractors, (b) ensuring Subcontractors’ compliance with this Agreement, and (c) making all payments owed to Subcontractors for their performance related to the Products.

8.       Representations & Warranties.

8.1.    Mutual. Each Party represents and warrants to the other Party that it: (a) has the legal power and authority to enter into this Agreement; (b) is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; (c) will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement; and (d) the individual signing on behalf of a Party has authority to bind the Party.

8.2.    From Cascade. Cascade represents and warrants the following:

8.2.1.Cascade will perform Services in a timely, competent, and professional manner and deliverables will conform to written specifications.

8.2.2.Equipment will be new, unused, and free from Cascade liens, unless stated otherwise in the Proposal. If Cascade breaches this warranty, you have the right to a replacement.

8.2.3.Cascade has all rights necessary to perform the Services and provide the Deliverables (if any), excluding Customer Materials and Customer-Procured Materials.

8.2.4.Cascade will use best efforts to pass through to you any warranties provided by Third-Party Vendors with respect to Third-Party Products and assist you if any Third-Party Products experience a failure while under warranty.

8.2.5.Cascade will not materially reduce the general functionality of the Cloud Services during your subscription unless required by law. If Cascade breaches this warranty, Cascade shall restore general functionality.

8.3.    From Customer. Customer represents and warrants that: (a) Cascade’s use of Customer Materials and Customer-Procured Materials does not and will not infringe or misappropriate anyone else’s intellectual property rights or publicity rights; and (b) Customer has all rights necessary to provide Customer Materials and Customer-Procured Materials. Additionally, Customer represents and warrants that Customer is not (a) a resident or national of an Embargoed Country; (b) an entity organized under the laws of an Embargoed Country; (c) designated on any list of prohibited, restricted, or sanctioned parties maintained by the US government or agencies or other applicable government or agencies, including OFAC’s Specially Designated Nationals and Blocked Persons List and the UN Security Council Consolidated List; nor (d) 50% or more owned by a party designated on any of the foregoing lists.

8.4.    Warranty Disclaimer. Except for the express warranties set forth in this Agreement, Cascade disclaims all other warranties and conditions, whether express or implied, including the implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Law.

8.5.    Warranty Remedy. If the Deliverables do not conform to the Requirements, Customer must provide Cascade written notice with sufficient detail for Cascade to understand or replicate the issue within 45 days after Cascade has delivered the Deliverable. With 45 days after receiving such notice, Cascade will reperform the Services and re-deliver the Deliverable. If Cascade cannot resolve the issue, Customer may terminate the SOW and return the Deliverable, and Cascade will provide a prorated refund of the fees for that portion of the Services applicable to the Deliverable. Cascade’s reperformance obligations and Customer’s termination right are Customer’s only remedies if Cascade does not meet the warranty in Section 8.2.1.

9.       Intellectual Property.

9.1.    Deliverables. Except for Cascade Property and Third-Party Materials, Cascade assigns all right, title, and interest in the Deliverables (if any) to Customer upon creation of each Deliverable, and Cascade will assert no rights, except the right for compensation, as applicable, over such Deliverables.

9.2.    Customer Materials.  Cascade may copy, display, modify, and use Customer Materials only as needed to provide the Services. Customer is responsible for the accuracy and content of Customer Materials.

9.3.    Cascade Property.  To the extent Cascade incorporates Cascade Property with Deliverables, Cascade grants Customer a non-exclusive, non-transferrable, perpetual, irrevocable, worldwide license to use Cascade Property only as necessary to use the Deliverables in accordance with the Agreement.

10.   Third-Party Materials. Cascade may incorporate Third-Party Materials into Deliverables as set forth in the SOW, the Proposal, or otherwise authorized by Customer in writing (including by email).  Cascade is responsible for obtaining all rights, licenses, consents, approvals, and authorizations necessary to use and incorporate the Cascade-Procured Materials incorporated into the Deliverables. Cascade’s responsibility includes securing the ability to grant Customer rights in the Deliverables under this Agreement and ensuring that Customer has all rights necessary in any Cascade-Procured Materials so that Customer may use Deliverables according to this Agreement.

Customer is responsible for obtaining all rights, licenses, consents, approvals, and authorizations necessary to use and incorporate (including Cascade’s right to incorporate) the Customer-Procured Materials incorporated into the Deliverables. Cascade will reasonably assist Customer in obtaining the necessary rights, licenses, consents, approvals, and authorizations for the Customer-Procured Materials recommended by Cascade.

11.   Reservation of Rights.  Except for those rights with respect to (a) Deliverables, Customer Materials, and Cascade Property addressed in Section 9 (Intellectual Property); and (b) Cloud Services as addressed in Section 2 (Cloud Services) of the Terms for Cloud Services Exhibit, neither Prty transfers any rights in any of their products, data, or any other intellectual property.

12.   Limitation of Liability

12.1.                     Liability Caps.

12.1.1.    Except (a) as provided in Section 12.4 (Exceptions) and (b) Section 12.1.2, each Party’s total cumulative liability for all claims arising out of or relating to this Agreement will not exceed the General Cap.

12.1.2.    Each Party’s total cumulative liability for all Increased Claims will not exceed the Increased Cap.

12.2.                     Damages Waiver. Except for a Party’s indemnification obligations or Customer’s breach of the Section 4.2 of the Terms for Cloud Services Exhibit, under no circumstances will either Party be liable to the other Party for lost profits or revenues (whether direct or indirect), or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if a Party has been informed of the possibility of this type of damage in advance.

12.3.                     Applicability. The limitations and waivers contained in Sections 12.1 (Liability Caps) and 9.2 (Damages Waiver) apply to all liability, whether in tort (including negligence), contract, breach of statutory duty, or otherwise.

12.4.                     Exceptions. The liability caps in Section 12.1 shall not apply to a Party’s indemnification obligations, a Party’s gross negligence or willful misconduct, or Customer’s breach of the restrictions in Section 4 (Restrictions & Obligations) of the Terms for Cloud Services Exhibit, for which liability shall be unlimited. Nothing in this Agreement will limit, exclude, or restrict a Party’s liability to the extent prohibited by Applicable Laws.

13.   Indemnification

13.1.                     Indemnification Obligations Specific to Services.

13.1.1.    Protection by Cascade. Cascade will indemnify, defend, and hold harmless Customer from and against any Claims, and all Losses resulting from such Claims (a) based on Cascade’s gross negligence or willful misconduct; or (b) that allege (i) the Deliverables, Services, or Cloud Services infringe or misappropriate third-party intellectual property rights, or (ii) the unauthorized use of Cascade-Procured Materials; or (c) that allege Cascade’s sale of Third-Party Products is not authorized by the Third-Party Vendor.

13.1.2.    Protection by Customer. Customer will indemnify, defend, and hold harmless Cascade from and against all Claims and all Losses resulting from such Claims (a) based on Customer’s gross negligence or willful misconduct, or (b) that allege (i) the Customer Materials or Customer Data infringe or misappropriate third-party intellectual property rights, or (c) the unauthorized use of Cascade-Procured Materials or Personal Data in Customer’s Data.

13.1.3.    Procedure. The Indemnifying Party’s obligations in this Section are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which the Protected Party seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. A Protected Party may participate in a Covered Claim for which the Protected Party seeks protection with its own attorneys and at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.

13.1.4.    Exclusions.

13.1.4.1.          Cascade’s obligations as the Indemnifying Party will not apply to the extent Claims result from (i) modifications to the Product that were not authorized by Cascade or that were made by Cascade or Subcontractors in compliance with Customer’s instructions; (ii) unauthorized use of the Product, Deliverables, or Cascade-Procured Materials, including use in violation of this Agreement; (iii) use of the Product or Deliverables in combination with items not provided by Cascade or authorized by the Documentation; (iv) use of an old version of the Product where a newer release would avoid the Claim; or (v) intellectual property infringement or misappropriation caused by Customer Content.

13.1.4.2.          Customer’s obligations as the Indemnifying Party will not apply to Claims that result from Cascade’s or its Subcontractors’ unauthorized use of the Customer Content, Customer Data, or Customer-Procured Materials including use in violation of this Agreement.

13.1.5.    Exclusive Remedy. This Section 13 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.

14.   Confidentiality; Privacy & Security

14.1.                     Non-Use and Non-Disclosure. Except as otherwise authorized in the Agreement or as needed to fulfill Recipient’s obligations or exercise Recipient’s rights under this Agreement, Recipient will not (a) use Discloser’s Confidential Information; nor (b) disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for Recipient’s own similar information but no less than a reasonable standard of care.

14.2.                     Required Disclosures. Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.

14.3.                     Permitted Disclosures. Recipient may disclose Discloser’s Confidential Information to employees, advisors, contractors, and representatives who each have a need to know the Confidential Information. Should a need arise to share confidential information with any third party, written consent shall be required. Recipient is responsible for compliance with the terms of this Section 14 (Confidentiality) by each person or entity to whom Recipient discloses Discloser’s Confidential Information.

14.4.                     Retention. Each Recipient may retain Discloser’s Confidential Information in accordance with Recipient’s standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Recipient’s confidentiality obligations and any privacy and security obligations under this Agreement will continue to apply to retained Confidential Information.

14.5.                     Privacy & Security

14.5.1.    Prohibited Data. Customer shall not, nor allow anyone else to, submit Prohibited Data to Cascade.

14.5.2.    Personal Data & Privacy. Cascade will handle Customer’s Personal Data in accordance with Cascade’s Privacy Policy and Applicable Law. Cascade reserves the right to amend its Privacy Policy from time to time without notice to Customer.  For more information about Cascade’s privacy policy, please visit https://cascadeenergy.com/privacy-policy/.

14.5.3.    Security Obligations. Cascade will take technical and organizational measures designed to protect Customer Data from accidental loss or unlawful destruction, alteration, disclosure, or access. Cascade has numerous proactive measures in place to ensure the protection of confidential and restricted data and Cascade is Service Organization Control 2 (SOC 2) Type II certified and audited annually.

Cascade shall notify Customer via email within 48 hours after Cascade’s actual knowledge of a confirmed breach affecting Customer’s data.

15.   Insurance. During the term of the Agreement, each Party is obligated to carry commercial insurance policies that will cover their respective liabilities. Cascade shall maintain coverage at no less than the following limits (the “Insurance Minimums”):

15.1.                     Workers’ Compensation or Employer’s Liability insurance as required by Applicable Laws;

15.2.                     Commercial General Liability with a minimum limit for each occurrence of at least $1,000,000 and $2,000,000 in the aggregate;

15.3.                     Professional Liability with a minimum limit for each occurrence of at least $1,000,000; and

15.4.                     Cyber Liability with a minimum limit for each occurrence of at least $1,000,000.

Upon request, Cascade shall provide a certificate of insurance evidencing the Insurance Minimums. A Party’s insurance policies will not be considered as evidence of liability.

16.   General Terms.

16.1.                     Entire Agreement.  This Agreement is the only agreement between the Parties about its subject, and this Agreement supersedes all prior agreements (whether in writing or not) about its subject. Cascade expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes.

16.2.                     Modifications, Severability, and Waiver.  Any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each Party. However, a Party may update an SOW by following the Change Order procedures set forth in Section 5 (Change Orders). If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a Party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that Party of the term, option, or right.

16.3.                     Governing Law and Chosen Courts.  All interpretations and disputes about this Agreement shall be governed by the laws of the State of Oregon without regard to the State of Oregon’s conflict of laws provisions. The Parties will bring any legal suit, action, or proceeding about this Agreement in the state or federal courts located in Multnomah County, Oregon, and each Party irrevocably submits to the exclusive jurisdiction of such courts.

16.4.                     Injunctive Relief.  Despite Section 16.3 (Governing Law and Chosen Courts), a breach of Section 14 (Confidentiality) or the violation of a Party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 14 (Confidentiality) or violation of a Party’s intellectual property rights, the non-breaching or non-violating Party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting the Party’s other rights or remedies.

16.5.                     Non-Exhaustive Remedies.  Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a Party.

16.6.                     Assignment.  Neither Party may assign any rights or obligations under this Agreement without the prior written consent of the other Party, except that a Party may assign this Agreement upon notice if such Party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any other attempted assignment is void. This Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.

16.7.                     No Publicity.  Without express written consent to be included in the Proposal or other form of writing agreed to between the Parties, neither Party will (a) disclose to any third party the existence or monetary value of the Agreement; (b) make any public announcement regarding the Parties’ relationship; (c) use the other Party’s trademark or any content in which a Party holds a copyright (whether or not registered) in any promotional materials, marketing activities, or elsewhere; (d) identify the other Party on a marketing or customer list or website or in any metatags or keywords for those websites; or (e) include a hyperlink from any website to the other Party’s website.

16.8.                     Notices.  Any notice, request, or approval about the Agreement must be in writing and sent to the address for the respective Parties in the Proposal. Notice to Cascade shall include a copy by email to legal@cascadeenergy.com. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.

16.9.                     Independent Contractors.  The Parties are independent contractors, not agents, partners, or joint venturers. Neither Party is authorized to bind the other Party to any liability or obligation.

16.10.                  No Third-Party Beneficiary.  There are no third-party beneficiaries of this Agreement.

16.11.                  Force Majeure.  Neither Party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this Section does not excuse Customer’s obligations to pay Fees.

16.12.                  Export Controls. Customer may not remove or export from the United States or allow the export or re-export of the Service, Deliverables, or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. 

16.13.                  Anti-Bribery.  Neither Party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Cascade or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.

16.14.                  Titles and Interpretation.  Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation.

16.15.                  Signature.  A Proposal may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.

Appendix A: Definitions

“Agency” is Customer when using the Cloud Services for the benefit of Customer’s customers, when expressly identified as an agency in the Proposal or SOW.

“Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where “control” means having more than 50% of the voting stock or other ownership interest.

“Aggregated Data” means Customer Data and Usage Data that Cascade has used commercially reasonable efforts consistent with industry standard technology to de-identify Customer, and then aggregated with other customers’ data, which also has been de-identified.

“Applicable Data Protection Laws” means Applicable Laws governing how the Cloud Services may process or use an individual’s personal information, personal data, personally identifiable information, or similar term.

“Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority applying to a Party’s performance of its obligations under this Agreement.

“Cascade-Procured Materials” means Third-Party Materials procured by Cascade.

“Cascade Property” means any information, tools, materials, or intellectual property that Cascade developed or owned before the Effective Date or developed after the Effective Date that are independent from or outside the scope of the Agreement, and any derivatives of these items that are not unique to Customer or that have generally applicable use and do not incorporate or disclose any Customer Confidential Information. Cascade Property includes the Cloud Services and the know-how, algorithms, formulas, structure, and formatting with respect to Reports.

“Change Order” means a document that identifies material changes to the SOW and is signed by an authorized representative of each Party.

“Claim” means a legal claim made by someone other than a Party or a Party’s Affiliates.

“Cloud Services” means “Cascade’s software-as-a-service offerings as identified in the Proposal.

“Confidential Information” means information in any form disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with this Agreement that (a) the Discloser identifies as “confidential,” “proprietary,” or the like; or (b) reasonably should be understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the existence of this Agreement. Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.

“Covered Claim” means a Claim subject to the Indemnifying Party’s indemnification obligations.

“Customer Content” means Customer Data and Customer Materials.

“Customer Data” means all data, information, or materials, including Personal Data, uploaded or submitted to the Cloud Services by or on behalf of Customer or Users, including via APIs connecting Customer Data to the Cloud Services via Third-Party Hardware, and derivatives of such data, information, or materials created by the Cloud Services, including Reports, and Registration Data, but excluding Cascade Property. Customer Data excludes Feedback and Aggregated Data.

“Customer Materials” means data, information, or materials owned or provided by or on behalf of Customer for use with the Services but excludes Feedback and Customer-Procured Materials.

“Customer-Procured Materials” means Third-Party Materials procured by Customer.

“Deliverable” means any tangible property, and any information inscribed on tangible medium or stored in an electronic or other medium, that Cascade creates, develops, or provides, or is to create, develop, or provide, under this Agreement.

“Discloser” means the Party providing or disclosing Confidential Information to the Recipient.

“Documentation” means written information provided by Cascade to help Customer Use the Cloud Services, which Cascade may distribute or provide on-line, in hardcopy, via webinars, virtual or live presentations, or by other forms.

“Embargoed Country” means any country or region to or from which Applicable Law generally restricts the export or import of goods, services, or money.

“Equipment” means modems, metering equipment, or other equipment, as specified in the Proposal.

“Feedback” means Customer’s suggestions, feedback, or comments about the Products or related offerings.

“Fees” means the amounts due for compensation to Cascade for the Products as set forth in the Proposal and the SOW, as applicable. Fees are exclusive of expenses and Taxes.

“Force Majeure Event” means an unforeseen event outside a Party’s reasonable control where the affected Party took reasonable measures to avoid or mitigate the impacts of the event. Examples of such events include unpredicted natural disasters such as a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.

“GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation and by Section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom and any amendments.

“General Cap” means the Fees paid or payable by Customer for the Product(s) subject to the claim for the 12 months preceding the date of the claim.

“Increased Cap” means 2x the General Cap.

“Increased Claims” means claims arising out of or relating to this Agreement for a Party’s breach of its confidentiality obligations or breach of its privacy and security obligations.

“Indemnifying Party” means a Party who is obligated to provide indemnification protection.

“Initial Term” means the first Subscription Period for a Product.

“Losses” means (a) all reasonable attorneys’ fees paid or payable in defense of any claim subject to indemnification under this Agreement, whether prior to, at trial or any other proceeding, and in any appeal or other post judgment proceeding; and (b) all sums paid or payable to any other person, including all direct losses and damages (including property damage and all incidental, consequential, punitive and exemplary damages), injuries (including personal injury, sickness and death), interest, costs, fines, taxes, premiums, assessments, penalties, expenses, attorneys’ fees (whether incurred prior to, at trial or any other proceeding and in any appeal or other post judgment proceedings), and other liabilities of any kind or nature.

“Malicious Code” means computer code that is designed (whether autonomously or by action of any person) to (a) disrupt, disable, erase, alter, harm, or otherwise impair in any manner the operation of any computer software, firmware, files, data, hardware, or networks (sometimes referred to as “viruses” or “worms”); (b) perform unauthorized processing or view or extract data without authorization; (c) implement a “timelock,” “time bomb,” “drop dead,” or similar device or any other similar harmful, malicious or hidden procedures, routines or mechanisms that would cause any software to cease functioning; (d) damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with user operations, including trojan horses; or (e) perform any other unauthorized functions.

“Non-Subscription Products” means Equipment and Non-Subscription Services.

“Non-Subscription Services” means professional services that are not provided over a Subscription Period.

“Party” means Customer or Cascade, individually, and “Parties” means both Customer and Cascade.

“Personal Data” has the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or similar term. 

“Personnel” means Cascade’s or its Affiliates’ employees, independent contractors, temporary workers, representatives, or agents, and Subcontractors and Subcontractors’ employees, independent contractors, and temporary workers.

“Privacy Policy” means Cascade’s privacy policy available at https://cascadeenergy.com/privacy-policy/.

“Product” means the Services, Cloud Services, Equipment, or Support purchased or subscribed to under the Proposal.

“Prohibited Data” means (a) protected health information regulated by the Health Insurance Portability and Accountability Act; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the GDPR; and (e) other similar categories of sensitive information according to Applicable Data Protection Laws.

“Protected Party” means the Party entitled to benefit of indemnification protection for a particular claim.

“Proposal” means the order form to which these Terms are attached describing the Products Customer agrees to purchase or subscribe and that Cascade agrees to deliver.

“Recipient” means the Party receiving Confidential Information from the Discloser.

“Registration Data” means information that is provided by Customer or a specific User to complete the sign-up process for purposes of Cascade providing Use of the Cloud Services for a specific User. Registration Data may include Personal Data.

“Renewal Term” means one or more commitment periods subsequent and equal in duration (unless set forth otherwise in the applicable Proposal) to the Initial Term for a particular Product.

“Requirements” means the applicable functional and/or technical requirements or acceptance criteria identified in the SOW.

“Reports” means reports, data, and other information returned by the Cloud Services in response to Customer Data inputs but excludes Usage Data and Cascade Property.

“Services” means the professional services described in an SOW, including the creation of Deliverables (if any), and Support, as indicated in the Proposal.

“Software” means the machine-readable object code version of a computer software program and all documentation relating to the operation or performance of such program, unless provided otherwise in the Proposal. Software includes operating system software embedded in Equipment.

“SOW” means a statement of work (or a scope of work) attached to the Proposal that includes the key business details and related terms for Services. A SOW may include details about the Deliverables, Fees, or other details about the Services.

“Subcontractors” means other people or companies, including Cascade Affiliates, engaged by Cascade to perform one or more of Cascade’s obligations under the Agreement.

“Subscription Period” means the Initial Term, plus each Renewal Term, if any.

“Subscription Services” means Cloud Services, Support, and Services to which Customer commits to receive and Cascade commits to perform for a fixed duration.

“Support” means advising Customer on connecting the Equipment to the internet and facilitating the proper transfer of data, as applicable.

“Taxes” means amounts collected or levied by government agencies on the sale of Products, but excludes such amounts levied on a Party’s income or with respect to its payroll or property.

“Third-Party Hardware” means hardware provided by a third party that Customer uses or that Cascade uses for Customer’s benefit to collect and provide data including in Customer Data.

“Third-Party Materials” means information, tools, materials, or intellectual property belonging to a third party.

“Third-Party Product” means Equipment or Software that a Third-Party Vendor creates, fabricates, manufactures, develops, and/or provides for sale or license to its customer generally, and that Cascade sells, resells, licenses, or otherwise provides to Customer pursuant to a Proposal.

“Third-Party Users” means individuals who represent Customer’s customers (a) under the Proposal, if applicable, where Customer is identified an Agency or (b) who are authorized energy management program participants under the SOW.

“Third-Party Vendor” means any third-party manufacturer, seller, distributor, licensor, or provider of Third-Party Products or Third-Party Services that are sold, licensed, or otherwise provided to Customer under this Agreement acting as the Third-Party Vendor’s authorized reseller, distributor or sales agent.

“User” includes Customer’s employees, temporary workers, and independent contractors of Customers, and Third-Party Users, each of whom are provided access to the Cloud Services by Cascade pursuant to the Proposal.

“Usage Data” means data and information about the provision, use, and performance of the Cloud Services and related offers based on Customer’s and Users’ Use, which may include standard device information, such as (without limitation) technical information about Users’ devices, systems, application software, and peripherals.

“Work Product” means (a) tangible property, and any information inscribed on tangible medium or stored in an electronic or other medium, that Cascade has created or developed under an SOW that (b) as of the effective date of termination does not constitute a completed Deliverable.