Energy Sensei® Software as a Service License Agreement

This Energy Sensei® Software as a Service License Agreement (“License Agreement”) is entered into as of the Activation Date (the “License Effective Date”), by and between Cascade Energy, Inc. (“Cascade”) an Oregon corporation with its principal place of business at 123 NE 3rd Ave., Suite 400, Portland, OR 97232, U.S.A., and User. Cascade is providing User the right to access its hosted Energy Sensei cloud-based software and documentation on the condition that User accepts all of the terms of this License Agreement. BY CLICKING THE “I AGREE” BUTTON USER IS CONSENTING TO BE UNCONDITIONALLY BOUND BY THE TERMS OF THIS AGREEMENT.

User and Cascade agree as follows:

1. DEFINITIONS

1.1. “Access” means to use or benefit from using the functionality of the Hosted Program(s).

1.2. “Activation Date” is the date on which User is delivered an authorized user ID and password from Cascade to Access the Hosted Program(s).

1.3. “Cascade Services” means the hosting services related to the Hosted Programs as described in this License Agreement.

1.4. “Customer” refers to an entity or organization that has entered into a Service Agreement with Cascade. A Customer may be a utility, a corporation, or an entity that coordinates with utilities regarding energy efficiency programs.

1.5. “Documentation” is information provided by Cascade to help User access the Hosted Program. It may be distributed or provided to User on-line, in hardcopy, webinars, virtual or live presentations, or other forms.

1.6. “Host Server” is the server provided by or on behalf of Cascade through which Users access the Hosted Programs, identified by a URL and one or more user IDs and passwords.

1.7. “Hosted Program(s)” is the Energy Sensei software and other computer software, if utilized, in object code form owned or provided by Cascade for which User has the right to Access via the subscription rights granted pursuant to this License Agreement, including without limitation, all updates and upgrades to the Hosted Program(s) and Documentation.

1.8. “Registration Data” means information that is required by Cascade and its third-party providers to complete the enrollment and registration process for purposes of enabling User to Access the Hosted Programs.

1.9. “Service Agreement” means the definitive service agreement between Cascade and Customer or Cascade and User for use of the Energy Sensei program.

1.10. “Third Party Software” means software provided by a third party.

1.11. “User” includes personnel of Customers, including Customer’s authorized contractors and authorized energy management program participants provided Access to the Hosted Programs pursuant to a Service Agreement subscription.

1.12. “User Data” means information entered into the Hosted Programs in the course of authorized Access of the Hosted Programs and stored on the Host Server for access by the Hosted Programs and retrieval by the User or Customer.

2. GRANT OF LICENSE

2.1. License. Subject to User’s compliance with these terms, Cascade grants to User a nonexclusive, nontransferable limited right to (1) Access the Hosted Programs on the Host Server solely for User’s own internal business operations and (2) use the Documentation in support of User’s authorized use of the Hosted Programs. No license is granted if User did not lawfully acquire Access from Cascade. Except as otherwise stated in this Agreement, User has the nonexclusive, worldwide limited right to use the Hosted Services during the period defined in the Service Agreement between Cascade and Customer. Users agree to this License Agreement and are responsible for compliance with its terms. Unless applicable law provides greater rights, the scope of this License is only that expressly permitted in this Agreement.

2.2. Consent. Accessing and using the Hosted Programs over the internet, which may include via a wireless network, may transmit standard device information, including without limitations technical information about User’s device, system, application software, and peripherals. User consents to the transmission of such information.

2.3. Restrictions. Except as specifically authorized in this License Agreement and subject to this Section 2.2 (Consent), User will not allow any third parties to access the Hosted Programs, or use the Hosted Programs for third-party training, commercial time-sharing, rental, or other use. Further, User shall not:

(1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Hosted Programs;

(2) authorize the access and use of the Hosted Programs to any third party;

(3) use the Hosted Programs for any purpose not expressly permitted;

(4) decompile, disassemble, or otherwise reverse-engineer the Hosted Programs;

(5) make any copies of the Hosted Programs.

(6) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;

(7) send or store infringing, obscene, threatening, libelous, discriminatory, harassing, or otherwise unlawful material, including material harmful to children or in violation of third-party privacy rights;

(8) send or store material containing software viruses, malware, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

(9) interfere with or disrupt the integrity or performance of the Hosted Programs or the data contained therein;

(10) attempt to gain unauthorized access to the Hosted Programs or its related systems or networks; or

(11) remove or destroy any proprietary markings or legends, including copyright and trademark notices, appearing on, or contained within any Hosted Program.

2.4. Reservation of Rights. As between the parties, Cascade retains all title, copyright, trademark, patent, and other proprietary rights in the Hosted Programs. User does not acquire any rights, express or implied, in the Hosted Programs or otherwise, other than those specified in the License Agreement. Cascade shall be entitled to use for its own and all commercial purposes, without restriction or charge, any improvements, suggestions, or enhancements to the Hosted Programs made or provided by User.

2.5. Third Party Software. All computer programs, application programs, databases and related information and documentation that are part of the Third-Party Software and all information and documentation that constitute the Third-Party Software services are and will at all times remain the sole and exclusive property of the Third-Party Software provider or the parties for whom the Third-Party Software provider is acting as agent or licensee.

2.6. Audit. Cascade shall have the right to monitor use of the Hosted Programs by User to verify compliance with the terms of this License Agreement and associated Service Agreement(s).

3. ACCESSING THE HOSTED PROGRAMS

3.1. Hosted Programs. Cascade will provide User with Access to the online Hosted Programs and will provide for the storage and retrieval of User Data in connection with use of the Hosted Programs. User is responsible for obtaining access to the Internet using appropriate software and hardware, including ensuring proper security of User’s systems and access to the Hosted Programs.

3.2. Authorized Access. User will be assigned a username and password by Cascade to obtain Access to the Hosted Programs and Cascade Services. Access without an assigned username and password, or by utilizing another’s password, shall be considered unauthorized and shall terminate this license.

3.3. User Obligations and Responsibilities. User is responsible and liable for all activity occurring under its User Energy Sensei accounts, whether or not such activities have been authorized by or known to User, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Hosted Programs, including those related to data privacy, international communications and the transmission of technical or personal data. User shall: (i) notify Cascade immediately of any unauthorized use of any password or user ID or any other known breach of security, including the loss of theft of any password or user ID; (ii) restrict access and use of the Hosted Programs by unauthorized users; and (iii) not impersonate another user or provide false identity information to gain access to or use the Hosted Programs.

3.4. User Account. In order to use the Hosted Programs and Cascade Services, and in order for the Cascade Services to operate properly, Users must supply Cascade with certain “Registration Data”, all of which must be accurate and updated as appropriate. Failure to properly maintain the Registration Data shall be a breach of the License Agreement. User should ensure that it can receive e-mail from Cascade, which may require User to add Cascade to a “trusted” sender list to avoid delays or having Cascade correspondences blocked from User’s inbox.

3.5. Cooperation. Cascade’s ability to provide Cascade Services is dependent upon User’s cooperation and ability to perform its obligations. Should User fail to perform any obligation or approve any request from Cascade, Cascade shall be relieved from any resulting liability and any delivery dates shall be reset accordingly.

4. USER DATA

4.1. User Data Warranty. User represents and warrants that it owns or has all necessary rights to use all User Data, including the right to upload User Data to the Host Server in connection with its authorized use of the Hosted Programs. User warrants that the User Data and its use in connection with the Hosted Programs does not infringe the rights of any third party or violate any applicable laws. User shall be responsible for complying with all applicable local, state, national and foreign laws, treaties, and regulations related to the use and disclosure of data, data privacy, international communications, and the transmission of technical or personal data. User will defend, indemnify, and hold harmless at its expense any action brought against Cascade to the extent based on a claim that arising from or resulting from breach of this non-infringement warranty or compliance with laws, treaties, or regulations. User will pay any costs and damages finally awarded against Cascade in such action that are attributable to such claim, provided that Cascade promptly notifies User in writing of the claim, allows User to control the defense, provides User with the information and assistance necessary for the defense and/or settlement of the claim, and do not agree to any settlement without User’s prior written consent.

4.2. Data Security Obligations.

(1) Unless otherwise agreed in writing, the parties agree that all software used to access the Hosted Programs will support the Secure Socket Layer (SSL) protocol.

(2) User agrees to access the Hosted Programs and to store and retrieve data using Third Party Software, including specifically Internet “browser” programs.

(3) Even though Cascade may provide usernames and passwords and may restore access to a User who loses them, User is responsible for obtaining and for remembering usernames and passwords for all Users (the “Log-In Information”). User must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned User and may not be shared or transferred. Each User is entirely responsible for the confidentiality of that User’s username and password. Each User will be entirely responsible for any and all activities that occur under the User’s account. Each User agrees to notify Cascade immediately of any unauthorized user of the User’s account or any other breach of security. Cascade will not be liable for any loss that User may incur as a result of someone else using that User’s password or account, either with or without the User’s knowledge.

(4) Cascade does not guarantee the security of any information transmitted to or from any User over the Internet including through the use of email. Access to and use of the internet is User’s sole responsibility and the responsibility of any internet provider they select. Cascade does not accept any responsibility for failure of service due to internet facilities, including related telecommunications or equipment.

(5) Cascade may at any time notify User of the need to suspend the access of User to the Hosted Programs and/or disable the User Log-In information. Grounds for doing so are not limited to but may include, for example, legal or regulatory reasons, investigation of suspicious activities, or action by authorities, or if Cascade or Customer has reason to suspect that any such User is engaged in activities that may violate these Terms of Use, applicable laws, or other Cascade policies, or are otherwise deemed harmful to Cascade, User, their network or facilities, or other Users. Neither Cascade nor Customer shall be liable to any User for suspension of services, regardless of the grounds.

(6) Cascade agrees to maintain the security of User Data using methods reasonably deemed to be adequate for secure business data and to notify User in the event of a breach involving User Data. Cascade agrees to retain User Data on a secure server and to maintain data recovery and data backup facilities in accordance with accepted practices.

4.3. Ownership of Data. Users retain all ownership and intellectual property rights in and to their own data. Users shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership for their data. Cascade is not responsible for inability to perform services due to improperly formatted or corrupt files, viruses on media provided by User, or incompatible backup media or software used by User. User warrants that storage or caching of their own data is not an infringement of any intellectual property rights or otherwise in violation of any applicable laws. User agrees that it will not store data on the Host Server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties. User may download its data at any time and for any reason during the subscription. For 90 days after expiration or termination of this License Agreement, Cascade will allow User to export their own data.

4.4. Data Aggregation; License to Cascade. To support the Energy Sensei software tools, calculators, benchmarking, and other functionalities that require aggregated User Data, and to the extent needed to provide the Cascade Services to User and others, to protect User and the Cascade Services, and to improve the Cascade Services, User hereby grants to Cascade an irrevocable, perpetual, non-exclusive, worldwide, royalty free license to collect, store, use and retain aggregated and de-identified User Data.

4.5. Privacy. Cascade will comply with federal (United States and Canadian) and state privacy law requirements that apply. The Privacy Policy is available at: https://energysensei.com/about-us/privacy. These policies may change from time to time and updates will be posted.

4.6. Technical Service Level. The technical service levels of the Energy Sensei platform are described in the Service Agreement or related attachments. In the unanticipated event that Cascade reduces a technical service level in a material way, it will notify User through the contact information that was provided.

5. CONFIDENTIALITY

5.1. Defined. By virtue of the License Agreement, the parties understand and agree that in the performance of this Agreement each party may have access to confidential information of the other party (“Confidential Information”). Confidential Information shall include the technology and software of the Hosted Programs, the terms and pricing of this Agreement and all Service Agreements and all information clearly identified as confidential at the time of disclosure. Cascade’s Confidential Information includes all information a User obtains through its Access to the Hosted Programs. User Data is considered Confidential Information unless and until all identification markers that would allow the data to be associated with a specific facility, Customer or User have been removed. Unless stated otherwise in the Service Agreement, aggregated data that has been de-identified shall remain available for use by Cascade in furthering development and refinement of its intellectual property as provided in this License Agreement and Cascade’s Privacy Policy.

5.2. Exceptions. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party as evidenced by contemporaneous written documentation.

5.3. Handling. Except as may otherwise be required by law, during the term of, and for a period of 5 years after the expiration or termination of this License Agreement, neither party shall disclose the other party’s Confidential Information to any person other than those authorized with a need-to-know or use the Confidential Information for any purpose other than for the purpose for which it is intended. Each party will use at least the same effort used to protect its own Confidential Information (but not less than reasonable care) to prevent the unauthorized disclosure of the other party’s Confidential Information.

5.4. Required Disclosure. Nothing shall prevent either party from disclosing the other’s Confidential Information as required by law, including without limitation a valid subpoena from a federal or state governmental entity. In the event that either party is requested or required for the purposes of legal, administrative, or alternative dispute resolution process to disclose any Confidential Information, the party receiving such disclosure request will provide the other party with prompt written notice of any such request or requirement, unless prohibited by law, so that such party may seek an appropriate protective order or other relief.

6. INTELLECTUAL PROPERTY

6.1. General. The Hosted Programs are the copyrighted works of Cascade and its licensors. All rights are reserved. Cascade Energy®, SENSEI®, Aquafficiency® and Energy Sensei® and the symbols used to identify Cascade and its offerings are registered trademarks of Cascade. Except as expressly provided under this Agreement, Cascade does not grant User a license or any other rights of any type under patents, know-how, copyrights, trade secrets, trademarks, or other intellectual property owned or controlled by Cascade or any related entity, including but not limited to any name, trade dress, logo, or such. The Cascade Services, graphics, images, content, compilation, digital conversion, databases, and all information provided in connection with the Hosted Programs and Cascade Services and other matters related to Cascade (other than User Data) and any modifications, updates, copies, customizations, derivative works, augmentations, or translations thereto, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by User or any other party relating to the Hosted Programs or Cascade Service are subject to all applicable copyright, trademark, trade secret and other laws protecting the proprietary rights of Cascade and its licensors. User rights to Access the Hosted Programs are licensed, not sold. User may not download or copy the software. Except for User Data and as otherwise provided in this Agreement, all content remains in the sole possession and ownership of Cascade and its licensors.

6.2. Cascade Approvals Required. All third-party trademarks, service marks, trade names or other identifying information used by Cascade for the Hosted Programs remain the sole and exclusive property of the applicable third parties. Except for linking to Cascade web sites, User may not use any Cascade logo or trademark, whether or not such mark(s) are registered, without prior written approval from Cascade. This includes use on printed materials of any kind as well as electronic mediums such as internet web pages or email. Furthermore, the use of the Cascade name (or any derivative thereof) in User’s URL, business name, or the names of any add-on products or services User may be offering independent of Cascade is prohibited. Using the Cascade name in paid targeted keyword advertising campaigns on search engines is also prohibited. Any copying, transmission, publication, or other unauthorized use of the contents of the Energy Sensei or Cascade Energy websites is prohibited.

7. TERM AND TERMINATION

7.1. Term. The term of this License Agreement shall begin on the date specified. Unless terminated earlier under the provisions of this Agreement, this License Agreement shall remain in effect until the expiration or termination of the Service Agreement.

7.2. Termination. Cascade may suspend or terminate this License Agreement at any time, immediately and without notice, upon User’s intentional, willful, or grossly negligent action or inaction that is reasonably construed as a breach of this License Agreement, or when applicable, upon notice from Customer. In any other instance where either party fails to comply with any material term or condition under this License Agreement, the parties agree to provide one another written notice of the concern and an opportunity to cure the concern prior to exercising the right to terminate the License Agreement. If such breach has not been cured to the reasonable satisfaction of the non-breaching party within thirty (30) days of receipt of written notice thereof by the breaching party, then the License Agreement may be terminated immediately upon written notice by the non-breaching party.

8. WARRANTY AND EXCLUSIVE REMEDIES

8.1. No Infringement. Cascade warrants that the Hosted Program(s), when used within the scope of this License Agreement, does not infringe any United States patent, copyright, or trade secret. Cascade will defend at its expense any action brought against User to the extent based on a claim that the Hosted Program, when used within the scope of this License Agreement, infringes a U.S. patent, copyright, or trade secret. Cascade will pay any costs and damages that are finally awarded and attributable to such a claim, provided that User promptly notifies Cascade in writing of the claim, allows Cascade to control the defense, provides Cascade with the information and assistance necessary for the defense and/or settlement of the claim, and does not agree to any settlement without Cascade’s prior written consent. Should the Hosted Program become, or in Cascade’s opinion be likely to become, the subject of any claim of infringement, Cascade may at its option (i) procure for User the right to continue using the Hosted Program, (ii) replace or modify the Hosted Program so as to make it non-infringing, or, if (i) and (ii) are not commercially reasonable, (iii) terminate the license granted hereunder and refund the amounts paid for such license. Cascade will have no liability for any claim of infringement based upon (i) use of other than the latest unmodified release of the Hosted Program available to you if such infringement would have been avoided by the use of such release and you were notified that use of the release would avoid such infringement, (ii) use or combination of the Hosted Programs with other programs or data if such infringement would not have occurred without such use or combination, or (iii) use of the Hosted Programs after receiving notice from a third party or Cascade that the Hosted Programs infringe a patent, copyright or trade secret right of a third party unless prompt written notice thereof is given to Cascade. The foregoing states the exclusive remedy of User and Cascade’s entire liability with respect to infringement of patents, copyrights, trade secrets or other proprietary rights.

8.2. Hosted Program Warranty. Cascade warrants that the Hosted Programs will materially perform in accordance with the Documentation so long as (1) the User has a current, paid-up right to use the Hosted Programs; and (2) User’s access to the Host Server will meet the minimum criteria set forth in Cascade’s Documentation.

8.3. Hosted Program Data Warranty. Cascade represents and warrants that User data that is collected, stored, and used within the Hosted Programs will be protected using standards as required by U.S. or Canadian law and that are the same or better than those that Cascade uses to protect its own confidential data. Cascade shall notify User via email to the address given in the Registration Data within 24 hours from Cascade’s actual knowledge of an actual or potential breach of User’s data stored in Hosted Programs.

8.4. Disclaimers.
(1) User acknowledges and agrees that it has sole responsibility to determine the accuracy of the data and reports prior to use.

(2) EXCEPT AS SET FORTH IN SECTIONS 8.1 (NO INFRINGEMENT), 8.2 (HOSTED PROGRAM WARRANTY), AND 8.3 (HOSTED PROGRAM DATA WARRANTY), THE HOSTED SERVICES ARE SOLD AS IS. CASCADE DOES NOT WARRANT OR REPRESENT, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE HOSTED PROGRAMS. CASCADE DOES NOT WARRANT OR REPRESENT THAT THE HOSTED PROGRAMS SHALL BE UNINTERRUPTED OR ERROR-FREE OR IMMUNE FROM FRAUDULENT INTRUSION AND/OR UNAUTHORIZED USE OR DISCLOSURE. CASCADE ASSUMES NO RESPONSIBILITY FOR ASSURING THE PROPER AND LAWFUL USE THEREOF BY USER OR END USER. CASCADE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT IN CONNECTION WITH THE HOSTED PROGRAMS, AND ANY SUCH WARRANTIES ARE DISCLAIMED TO THE EXTENT NOT PROHIBITED BY LAW.

(3) HOSTED PROGRAMS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CASCADE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA.

(4) CASCADE DOES NOT GUARANTEE THAT THE HOSTED PROGRAMS SHALL IN ALL CASES MEET USER’S REQUIREMENTS, AND CASCADE LIKEWISE DISCLAIMS ANY WARRANTY THAT THE HOSTED PROGRAMS SHALL SUCCESSFULLY ACCOMPLISH THE SPECIFIC OBJECTIVES DESIRED BY USER.

8.5. Exclusive Remedies. FOR ANY BREACH OF THE WARRANTIES CONTAINED IN SECTIONS 8.2 (HOSTED PROGRAM WARRANTY) and 8.3 (HOSTED PROGRAM DATA WARRANTY) USER’S EXCLUSIVE REMEDY, AND CASCADE’S ENTIRE LIABILITY, SHALL BE THE CORRECTION OF THE HOSTED PROGRAM ERRORS OR RE-PERFORMANCE. USER SHALL NOTIFY CASCADE WITHIN 30 DAYS OF DISCOVERY OF ANY ERROR OR SUCH CLAIM SHALL BE DEEMED WAIVED BY USER.

9. INDEMNIFICATION

9.1. By using the Hosted Programs, User expressly authorizes and directs Cascade to carry out such transaction or performance on User’s behalf. Additionally, User represents and agrees that it has obtained all authorizations required by applicable law or otherwise to allow Cascade to carry out such transaction or performance.

9.2. USER SHALL INDEMNIFY, DEFEND AND HOLD CASCADE HARMLESS FROM AND AGAINST ANY LIABILITY AND FOR ALL DAMAGES, COSTS AND EXPENSES, INCLUDING ALL REASONABLE ATTORNEY FEES AND EXPENSES, INCURRED BY CASCADE IN TAKING SUCH ACTIONS IN SECTION 9.1.

9.3. ADDITIONALLY, USER SHALL INDEMNIFY, DEFEND AND HOLD CASCADE HARMLESS FROM AND AGAINST ANY THIRD-PARTY CLAIM AND ANY RELATED COST OR EXPENSE, INCLUDING REASONABLE ATTORNEY FEES AND EXPENSES, ARISING OUT OF OR RELATED TO ANY BREACH OF THIS LICENSE AGREEMENT.

10. LIMITATION OF LIABILITY

10.1. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, REJECTED OR DENIED CLAIMS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY RELATED TO THE HOSTED PROGRAMS INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE HOSTED PROGRAMS , OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE HOSTED PROGRAMS ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSOR’S HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2. WITH THE EXCEPTION OF SECTION 8.1 (NO INFRINGEMENT) ABOVE, IN NO EVENT SHALL CASCADE’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY USER IN THE THREE (3)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

11. MISCELLANEOUS

11.1. Force Majeure. Cascade shall not be responsible for any delays, errors, failures to perform, interruptions or disruptions in the Hosted Programs for the time and to the extent such failure or delay is due to causes beyond its reasonable control, including, but not limited to, any act of nature, labor dispute or disturbance, material shortage or rationing, fire, storm, tornado, tidal wave, vandalism, riot, explosion, power outage earthquake, flood, civil disturbance, sabotage, cyber-attack including denial of service attack, act of war, act of terrorism, governmental action or regulation (collectively “Force Majeure Items”).

11.2. Independent Contractors. The relationship between Cascade, Customer, User, and any third party is that of independent contractors. Nothing in this License Agreement shall be construed or deemed to create any other relationship, including that of joint venture, partnership, or in an employment or agency relationship.

11.3. Construction. In the event of a dispute hereunder, this License Agreement shall be interpreted in accordance with its fair meaning and shall not be interpreted for or against any party hereto on the ground that such party drafted or caused to be drafted this License Agreement or any part hereof, nor shall any presumption or burden of proof or persuasion be implied by virtue of the fact that this License Agreement may have been prepared by or at the request of a particular party or its counsel. Article and Section headings are for convenience only and shall not affect the interpretation of this License Agreement.

11.4. Notice. Any notices required or permitted under this License Agreement shall be in writing and shall be deemed given if (i) delivered in person, (ii) sent by registered or certified mail, return receipt requested, with proper postage affixed, (iii) sent by facsimile with confirmation of receipt; (iv) sent by overnight mail service with confirmation of delivery; or (v) sent by email with confirmation of receipt. In all instances, notice shall be deemed effective upon confirmation of receipt or delivery. Each party shall notify the other party if the address set forth in the introductory paragraph hereof is no longer such party’s mailing address for notice purposes.

11.5. Choice of Law; Jurisdiction; Service of Process. The parties acknowledge that this License Agreement shall be construed in accordance with the laws of the State of Oregon, without regard to the conflicts of law provisions thereof.

11.6. Dispute Resolution. Any controversy, transaction or dispute arising out of or relating to this License Agreement shall be settled according to the dispute resolution requirements set forth in the Service Agreement. If no such provisions are set forth in the Service Agreement, then the following provisions shall apply: If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the dispute in an amicable manner by mediation, and the parties shall cooperate in good faith to select a mediator. Thereafter, any unresolved controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be subject to arbitration administered by the American Arbitration Association and conducted in accordance with the Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator shall be binding on both parties and may be entered in any court of competent jurisdiction. Unless otherwise agreed in writing by Cascade and Customer, the arbitration shall be conducted before a single arbitrator, and the arbitration hearing shall take place in Portland, Oregon.

11.7. Export Controls and Restricted Rights. This agreement is expressly made subject to any laws, regulations, orders, or other restrictions on the export from the United States of America of the Hosted Programs, content, Cascade intellectual property or information about such Hosted Programs, which may be imposed from time to time by the government of the United States of America or Canada. User shall not export the service including, without limitation, content, Cascade intellectual property or confidential information, and information about the Hosted Programs without the written consent of Cascade and compliance with such laws, regulations, orders, or other restrictions. The Hosted Programs and accompanying documentation are commercial computer software and documentation developed exclusively at private expense and in all respects are proprietary data belonging to Cascade.

11.8. Assignment. User may not assign this License Agreement or any right or obligation hereunder, directly, indirectly, by operation of law or otherwise, without Cascade’s prior written consent, and any attempt to do so will be void and of no force or effect. If the Assignment is caused by a sale, merger, or other transfer of substantially all User’s assets, then Cascade’s consent is deemed. This License Agreement is freely assignable and/or transferable by Cascade without the consent of User. This License Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.

11.9. Severability. Each provision of this License Agreement is intended to be severable from each other provision, and the validity or illegality of any portion hereof shall not affect the validity or legality of the remainder hereof.

11.10. Survival. The provisions of Sections 4 (User Data), 5 (Confidentiality), 6 (Intellectual Property), 10 (Limitation of Liability) and 11 (Miscellaneous), and any payment obligations of either party shall survive the expiration or termination of this License Agreement for any reason. All other rights and obligations of the parties shall cease upon termination of this License Agreement. Except for actions for nonpayment, or User’s breach of Sections 5 (Confidentiality) or 6 (Intellectual Property), no action, regardless of form, arising out of the License Agreement may be brought by either party more than one year after the cause of action has accrued.

11.11. Entire Agreement. The License Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of the License Agreement.

Last Updated: May 22, 2023