Terms of Subscription Services
Last updated April 1st, 2024
These Terms of Subscription Service ("TOS"), the Subscription Services Agreement ("SSA"), any applicable Order Form (together, the "Subscription Agreement") form a binding agreement between Cascading AI Inc. and its Affiliates ("Cascading AI", "the Company", "we", "us" and/or "our") and the entity identified in the SSA as the subscriber of the Cascading AI Solution ("Subscriber").
1. Definitions
Affiliates means an entity which: (a) is owned or Controlled by, (b) owns or Controls (any such entity is referred to herein as a "Subsidiary"), or (c) is under common Control with another entity; where "Control" means having more than fifty percent (50%) of the controlled entity's shares or ownership interests representing the right to make decisions for such controlled entity.
Aggregated Data means Subscriber Data that has been deidentified and aggregated with other data such that the resulting data no longer reasonably identifies Subscriber, a specific individual, nor a specific entity. Aggregated Data excludes any Personally Identifiable Information.
2. Subscription Services
2.1 Subscription Services. Cascading AI provides the Subscriber with access to the Cascading AI Solution as described in any applicable Order Forms with reasonable skill and care. Access and use are permitted for the Subscriber's business purposes only. Access and use for the benefit of any third party is not permitted.
3. Subscriber's Responsibilities
3.1 Assessment of Loan Applications/Decisions. The Cascading AI Solution is an AI-based solution that enables the Subscriber to process Loan Applications on a highly automated basis. Cascading AI uses all commercially reasonable efforts for an automated processing. However, in all cases, the Subscriber and its Authorized Users shall make and are solely responsible for the final assessment and decision with respect to a Loan Application.
4. Fees and Payment Terms
4.1 Fees. Promptly after the Activation Date and for each calendar month during the Term, the Subscriber will pay Cascading AI a monthly fee as set forth in the Order Form for all Authorized Users having access to the Cascading AI Solution ("Minimum Purchase Amount"). For each Loan Application that is processed by the Cascading AI Solution in any such calendar month (whether or not an Applicant has previously submitted a Loan Application previously processed by the Cascading AI Solution during such calendar month), the Subscriber will be charged a per-application fee as set forth in the Order Form ("Loan Fee" and, together with the Minimum Purchase Amount, the "Fees"). Fifty percent (50%) of the Loan Fees incurred during any such calendar month will be credited against the Minimum Purchase Amount ("Monthly Credit"), and the Subscriber will pay the Loan Fee for each Loan Application processed by the Cascading AI Solution after the Monthly Credit has been exhausted.
5. License Grant and Restrictions
5.1 License Grant. Subject to the terms and conditions of this Agreement, Cascading AI grants to the Subscriber a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to access and use the Cascading AI Solution during the Term solely for the Subscriber's internal business purposes.
6. Intellectual Property
6.1 Ownership. The Subscriber acknowledges and agrees that: (a) the Cascading AI Solution and all Intellectual Property Rights therein are and shall remain the sole and exclusive property of Cascading AI and its licensors; (b) the Subscriber has no right or license in or to the Cascading AI Solution or any Intellectual Property Rights therein, except for the limited right to access and use the Cascading AI Solution as expressly set forth in this Agreement; and (c) the Subscriber has no right to receive any source code for the Cascading AI Solution.
7. Confidentiality
7.1 Confidential Information. Each Party (the "Receiving Party") understands that the other Party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). Confidential Information of Cascading AI includes non-public information regarding features, functionality and performance of the Cascading AI Solution. Confidential Information of the Subscriber includes non-public Subscriber Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except as expressly permitted by this Agreement) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party, or (e) was disclosed in response to a valid order by a court or other governmental body, or (f) was disclosed as part of a sale of substantially all of the assets of the Receiving Party or a merger of the Receiving Party into another entity or any similar transaction. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is required by law or court order, but the Receiving Party will provide the Disclosing Party with prompt notice of such requirement and will cooperate with the Disclosing Party in seeking a protective order or other appropriate remedy to protect the Confidential Information of the Disclosing Party. The Receiving Party's obligations of confidentiality hereunder shall survive the termination of this Agreement for a period of five (5) years following such termination (except that, as to any information that is identified as a trade secret under applicable law, each Party's obligations shall survive for so long as such information remains a trade secret). Any information provided to a Party about such Party's products and/or services (including any Feedback) is deemed to be the Confidential Information of such Party.
9. Data Processing
Data processing shall be governed by Cascading AI's Data Processing Agreement.
10. Term and Termination
10.1 Term. This Agreement will commence upon the Activation Date and will continue in full force and effect until terminated in accordance with the terms of this Agreement. The Parties may, at any time, mutually agree, in writing, to terminate this Agreement.
11. Warranties
11.1 Mutual. Each Party represents and warrants to the other Party that: (a) it is a corporation, limited liability company, or other business entity duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, organization, or formation; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (c) it has provided, and will provide, all notices to, and has obtained, and will obtain and maintain, all necessary and sufficient rights, consents, approvals, waivers, authorizations, and permissions for it to have the full right, power and authority to enter into this Agreement and to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its representative whose signature is set forth below has been duly authorized by all necessary action of the Party; (e) when executed and delivered by each Party, this Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable against such Party in accordance with the terms and conditions set forth herein.
12. Disclaimer
EXCEPT AS EXPRESSLY SET FORTH HEREIN: (a) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, DUTIES, AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (b) THE CASCADING AI SOLUTION, CASCADING AI TECHNOLOGY, SUBSCRIBER DATA, AND ALL INTELLECTUAL PROPERTY MADE AVAILABLE OR LICENSED BY CASCADING AI UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND "WITH ALL FAULTS." CASCADING AI DOES NOT WARRANT THAT THE CASCADING AI SOLUTION, THE CASCADING AI TECHNOLOGY, OR ANY PORTION THEREOF, OR ANY MATERIALS OR CONTENT OFFERED OR MADE AVAILABLE THROUGH THEM, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND CASCADING AI DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY OR ON BEHALF OF SUBSCRIBER THROUGH THE CASCADING AI SOLUTION OR FROM CASCADING AI OR ANY MATERIALS OR CONTENT MADE AVAILABLE ON OR THROUGH THE CASCADING AI SOLUTION WILL CREATE ANY WARRANTY REGARDING CASCADING AI, THE CASCADING AI SOLUTION, SUBSCRIBER DATA, OR THE CASCADING AI TECHNOLOGY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 7.2 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. CASCADING AI DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT CASCADING AI IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
13. Limitations of Liability
13.1 Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
13.2 Direct Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT OF FEES PAID TO CASCADING AI IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCE FIRST GIVING RISE TO THE LIABILITY (PROVIDED THAT THE FOREGOING IS NOT A LIMITATION OF ANY OBLIGATION TO PAY ANY AMOUNTS DUE AND PAYABLE HEREUNDER).
13.3 Exclusions. The foregoing limitations of liability set forth in this Section 12 will not apply to liabilities arising from: (a) a Party's gross negligence, willful misconduct, or fraud; (b) Subscriber's indemnification obligations under this Agreement; or (c) a Party's breach of the confidentiality obligations set forth in Section 8 or (d) a breach of the DPA.
13.4 Essential Purpose. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12 WILL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14. Indemnification
14.1 By Cascading AI. Cascading AI will defend or at its option settle any and all claims, demands, or actions made by a third Party ("Claims") brought against the Subscriber arising from Cascading AI's gross negligence, willful misconduct, or fraud in connection with the performance of its obligations hereunder. Cascading AI will pay any final judgments awarded in any such Claim defended by Cascading AI or settlements entered into by Cascading AI.
14.2 By Subscriber. The Subscriber will defend or at its option settle any and all Claims brought against Cascading AI arising from: (a) Subscriber's gross negligence, willful misconduct, or fraud in connection with the performance of its obligations hereunder; (b) any breach or non-fulfillment by the Subscriber of any representation or warranty set forth herein or that is otherwise provided by the Subscriber with respect to the Cascading AI Solution; or (c) any claim, dispute, or action brought by any Applicant, or any governmental regulatory, administrative, authority, or body with jurisdiction over the Subscriber or the Applicants. The Subscriber will pay any final judgments awarded in any such Claim defended by the Subscriber or settlements entered into by Subscriber.
14.3 Procedures. Any Claim subject to indemnification under this Section 9 will be subject to the following provisions: (a) the indemnifying Party will be given prompt written notice of the Claim by the indemnified Party, provided that any delay in providing notice will not relieve the indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying Party was prejudiced by the delay; (b) the indemnifying Party will have the right to control the defense and all negotiations relative to the settlement of any such Claim (except that the indemnified Party may participate in a Claim with its own counsel at its own expense), provided that no settlement admitting liability on the part of the indemnified Party may be made without the express written consent of the indemnified Party (not to be unreasonably withheld, conditioned, or delayed); and (c) the indemnified Party will reasonably cooperate with the indemnifying Party and its counsel at the indemnifying Party's cost and expense.
15. General Terms
15.1 No Partnership, Joint Venture or Franchise. The Subscription Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.
15.2 Compliance with Laws; Export. The Cascading AI Solution and Subscriber Data may be subject to U.S. and/or international import, export, and reexport control laws and regulations and trade sanctions, and the Subscriber represents and warrants that it will comply with all applicable laws (including the U.S. Export Administration Regulations) that apply to any of the foregoing or its performance of its obligations, or exercise of rights, under this Agreement.
15.3 Governing Law and Jurisdiction. The Subscription Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Except as specified in Section 14.4, any action, dispute, or claim arising out of or in connection with this Agreement will be brought in the state or federal courts in Santa Clara County, California, and each Party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.
15.4 Arbitration. Any dispute as to the interpretation, enforcement, breach, or termination of the Subscription Agreement will be settled by binding arbitration in San Francisco, California, under the Rules of the American Arbitration Association ("Rules") by three arbitrators appointed in accordance with the Rules. If there is a conflict between the Rules and this Agreement, this Agreement will prevail. All other disputes will be resolved by a court specified in Section 14.3. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. Nothing in this Section will be interpreted or otherwise construed as preventing a Party from applying at any time to a court of competent jurisdiction to seek and obtain injunctive and other equitable relief (including, without limitation, a temporary restraining order) and by doing so will not breach or waive the agreement to arbitrate disputes set forth in this Section. The Parties, their representatives, the arbitrator, and other participants shall keep confidential the existence, content, and result of the arbitration. Each Party will bear its own costs in the arbitration. The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the provisions of the agreement documents and to fashion appropriate remedies (including temporary, preliminary, interim, or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (i) in excess of the authority that a court having jurisdiction over the Parties and the dispute would have absent this arbitration agreement; or (ii) to award damages in excess of the types and limitation of damages found in the Agreement.
15.5 Assignability. The Subscriber may not assign its rights, duties, and obligations under this Agreement without Cascading AI's prior written consent, except that the Subscriber may assign this Agreement without Cascading AI's consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the assignee agrees in writing to assume and fulfill all of Subscriber's obligations under this Agreement and the successor does not indirectly or directly compete with Cascading AI. Cascading AI may assign its rights, duties, and obligations under this Agreement at any time without Cascading AI's consent. Any assignment in violation of this Section 10.6 is null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
15.6 Construction; Waiver. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to the Subscriber under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate. Any waiver of the provisions of this Agreement or of a Party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the Party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the Party's right to take subsequent action. Exercise or enforcement by either Party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the Party is entitled by law to enforce.
15.7 Force Majeure. In no event will Cascading AI be liable or responsible to Subscriber, or be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any obligation under this Agreement to the extent such failure or delay is caused by any circumstances beyond Cascading AI's reasonable control, including (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) inability to obtain sufficient supplies, transportation, services, materials, technology, or other essential commodity or service required in the conduct of its business; and (i) any material change in or the adoption of any applicable law, regulation, judgment or decree that prevents, or alters Cascading AI's ability to perform its obligation under this Agreement (each a "Force Majeure Event").
15.8 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth above and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier. Email notice is sufficient for changes to TOS.
15.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
15.10 Severability. If any term or provision of the Subscription Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Subscription Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to modify the Subscription Agreement to address the determination and effect the original intent of the Parties as closely as possible.