Last modified January 27, 2012.
PLEASE READ THIS AGREEMENT (the “Agreement”) CAREFULLY. REGISTERING TO JOIN THE CASPIO DEVELOPER PROGRAM CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT AND THAT YOU REPRESENT (“DEVELOPER”) TO THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL OR ANY PART OF THIS AGREEMENT, DO NOT PRESS “I AGREE” AND YOU WILL NOT BE PERMITTED TO JOIN THE PROGRAM DESCRIBED HEREIN.
The Agreement is entered into between Developer and Caspio, Inc. (“Caspio”), a Delaware corporation having principal place of business at 2953 Bunker Hill Lane, Suite 201, Santa Clara, CA 95054 USA.
This Agreement enters into effect when accepted by Developer. Caspio and Developer may be referred to individually as a “Party” and collectively as the “Parties.”
Caspio Party means the Caspio entity entering into this Agreement and its officers, directors, employees, successors and assigns.
Claims means all claims, suits, demands and actions brought by a third party against a party hereto.
Confidential Information means the terms and conditions of this Agreement and any information regarding each party’s products, services, product designs, plans and roadmaps, prices and costs, trade secrets, know how, inventions, development plans, techniques, processes, programs, schematics, software, data, customer lists, financial information, sales and marketing plans, business opportunities, personnel data, research and development activities, and prerelease products, and any information posted on www.Caspio.com (to the extent that such information is not publicly accessible), or any other information which the receiving party (“Receiving Party”) knows or reasonably ought to know is confidential, proprietary or trade secret information of the disclosing party (“Disclosing Party”).
Damages means all damages, losses, cost and liabilities (including reasonable attorney and professional fees) that arise or result from Claims.
Developer Logo means Developer’s corporate logo, name(s), brand or other mark provided by Developer to Caspio for use hereunder.
Developer Parties means Developer and its officers, directors, employees, successors and assigns.
Developer Services means the products, technology and support services available to Developers.
Effective Date means the date Developer electronically accepts this Agreement.
Fee means the non-refundable sum required to be paid by Developer to cover costs of Developer Services available under Program for the initial term or any renewal.
Product means the Caspio product(s) including Software, Hardware and Documentation, if any, provided by Caspio to Developer for purposes of beta testing and early field trial testing in accordance with Section 6.
Program means the Caspio Developer Network program.
Program Guidelines means the then-current operational details, conditions and requirements for the Program.
Program Logos means the logos, designations or badges Caspio authorizes for the Program, in its sole discretion; provided, however, that “Program Logos” expressly excludes the Caspio corporate logo or any other Caspio logo or trademark not expressly authorized by Caspio for use under the Program.
Software means the computer programs provided as part of or together with any Product.
Solution means the combination or interoperability hereunder of any Caspio product, technology or service with a Developer product, technology or service.
In consideration of payment of the Fee and the mutual promises contained herein, the Parties hereby agree as follows:
1.1 This Agreement governs the rights and obligations of the Parties with respect to the Program. Neither Party shall have any rights or obligations vis-à-vis one another by reason of Developer’s participation in the Program that are not expressly granted or provided for in this Agreement.
1.2 Developer confirms that Caspio has not given it, nor has it relied on, any representations or assurances of future revenues, sales opportunities or similar benefits arising from participation in this Program.
2.1 Recipient agrees that Recipient will not use, disseminate, or in any way disclose any Confidential Information to any person, firm or business, except to the extent necessary for internal evaluations in connection with negotiations, discussions, and consultations with personnel or authorized representatives of Caspio and for any other purpose Caspio may hereafter authorize in writing. Furthermore, the existence of any business negotiations, discussions, consultations or agreements in progress between the parties shall not be released to any form of public media without the prior written approval of Caspio. Recipient agrees that Recipient shall treat all Confidential Information of Caspio with the same degree of care as Recipient accords to Recipient’s own Confidential Information, but in no case less than reasonable care. If Recipient is not an individual, Recipient agrees that Recipient shall disclose Confidential Information of Caspio only to those of Recipient’s employees who need to know such information and certifies that such employees have previously agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to Recipient under this Agreement.
2.2 Recipient will immediately give notice to Caspio of any unauthorized use or disclosure of the Confidential Information. Recipient agrees to assist Caspio in remedying any such unauthorized use or disclosure of the Confidential Information.
2.3 The obligations of confidentiality set forth herein shall apply for a period of five (5) years following receipt of the applicable Confidential Information, or in the case of source code, the obligations of confidentiality shall survive in perpetuity.
2.4 Developer shall obtain Caspio’s review and approval prior to the issuance of any press release or other public announcement concerning the existence or subject matter of either this Agreement or Developer’s participation in the Program. When Caspio approves a contribution to Developer’s press release or approves of such release, the release may appear no later than thirty (30) days after approval date. Where the content of a Caspio originated public notice or similar document references Developer as a participant in the Program, Caspio will obtain Developer’s review and approval thereof prior to the public release, provided that such consent shall not be unreasonably withheld, and if Developer does not disapprove of such communication within five (5) business days of Caspio’s request for review, Developer’s approval shall be deemed to have been granted.
Notwithstanding the foregoing, where the content of a Caspio-originated public notice or similar document contains material information regarding Developer’s datasheets, collateral and similar information, such deemed approval shall not apply, and in such case Caspio must receive Developer’s review and approval thereof prior to public release. Notwithstanding anything to the contrary in this Agreement, Caspio shall not be required to seek individual Developer approval for generic Program public notices.
3.1 The term of this Agreement shall be twelve (12) months from the Effective Date. Unless earlier terminated and provided Developer pays the applicable Fee for each renewal, the term shall automatically renew for additional twelve-month terms unless either party gives not less than thirty (30) days’ notice prior to the expiration of the initial term or any renewal term. Either party may terminate this Agreement at any time, without cause, upon 60 calendar days’ written notice. Neither party will be responsible to the other for any costs or damages that are a direct result of such termination. Either party may terminate this Agreement in the event the other party fails to cure a material breach of the Agreement within thirty (30) days after receiving written notice thereof. Caspio may discontinue the Program upon sixty (60) days’ notice to Developer, delivered via the CDN Website or otherwise as permitted hereunder. Developer confirms that it has no expectation or belief that Caspio shall continue the Program or Developer’s membership therein indefinitely.
3.2 Upon termination or expiration of the Agreement for any reason all licenses granted under this Agreement shall terminate; provided, however that each Party shall have a reasonable time to cease all display and use of the other Party’s logos, brands, trademarks or other indicia licensed hereunder, not to exceed thirty (30) days from the date of such termination or expiration.
3.3 All definitions and the rights and obligations of the Parties contained in Sections 2, 3, 4, 5, 6 and 7 shall survive any expiration or termination of this Agreement.
3.4 Following termination or expiration of the Agreement for any reason, Developer agrees to continue to provide support for any of Developer’s products included in any Solution in accordance with the Program Guidelines in effect during the shipping life or other commercial availability of the Solution. Termination of this Agreement will not, by itself, result in the termination of any unresolved request for support made before termination.
The terms of this Agreement will continue in effect solely for the purpose of such unresolved support requests until the requests are resolved or are otherwise closed.
4.1 Developer acknowledges and agrees that Caspio retains all right, title and interest in and to the Program Logos, and Caspio acknowledges and agrees that Developer retains all right, title and interest in and to the Developer Logo. Nothing herein is intended to grant any right in the Program Logos or the Developer Logo other than the right to use the same in accordance with the requirements set forth in this Agreement. The license to use the Program Logo and the Developer Logo will terminate no later than termination or expiration of the Agreement. Notwithstanding any other termination provision, however, Caspio reserves the right to take action against any use that does not conform to these requirements or Caspio’s brand policies; that infringes or otherwise violates Caspio’s intellectual property or other rights; or that violates other applicable law. In any and all such cases, Caspio reserves the right to terminate Developer’s license to use one or more of the Program Logos. Notwithstanding any other termination provision, however, Developer reserves the right to take action against any use that does not conform to its Developer Logo use requirements; that infringes or otherwise violates Developer’s intellectual property or other rights; or that violates other applicable law.
4.2 Developer expressly acknowledges and agrees that Caspio, by permitting Developer to participate in the Program and to use the Program Logos in the manner specified hereunder, is not in any manner certifying the use, operation or functionality of Developer’s products. Accordingly, Developer acknowledges and agrees that the use of Program Logos in connection with qualified products or solutions may be subject to disclaimer or other legal notices required by Caspio in its sole discretion.
5.1 ANY DEVELOPER SERVICES SHALL BE PERFORMED IN A WORKMANLLIKE MANNER. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT. ALL TECHNICAL INFORMATION, HARDWARE, SOFTWARE, LOGOS, TRADEMARKS AND CONFIDENTIAL INFORMATION PROVIDED BY EITHER PARTY TO THE OTHER IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND EACH PARTY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
5.2 EXCEPT FOR BREACH OF ANY OF THE LICENSES GRANTED HEREIN, BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS OR LIABILITY FOR INDEMNITY UNDER SECTION 13 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT OR ITS TERMINATION. EXCEPT FOR BREACH OF ANY OF THE LICENSES GRANTED HEREIN, BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS OR LIABILITY UNDER SECTION 13 (INDEMNIFICATION), NEITHER PARTY’S LIABILITY HEREUNDER SHALL EXCEED THE AMOUNT OF THE FEE(S) OWED OR PAID (WHICHEVER IS GREATER) BY DEVELOPER. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT (THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).
5.3 EACH PARTY CONFIRMS THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION 12 ARE THE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
6.1 Developer will defend, indemnify and hold harmless Caspio from and against any Claim for Damages, as incurred, resulting from or arising out of Developer’s breach of this Agreement or use of the Program Logos in any manner. As a condition to receiving such defense and indemnity, Caspio shall provide Developer with prompt written notice of the Claim and permit Developer to control the defense, settlement, adjustment or compromise thereof. Caspio may employ counsel at its own expense to assist it with respect to any Claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Developer or its counsel or because Developer does not promptly assume control of such Claim, Developer will bear the expense of such counsel. Caspio will have no authority to settle any claim on behalf of Developer.
6.2 Caspio will defend, indemnify and hold harmless the Developer Parties from and against any Claim for Damages, as incurred, resulting from or arising out of Caspio’s breach of this Agreement or any Program Logo infringing the registered U.S. trademark rights of any third party. As a condition to receiving such defense and indemnity, Developer shall provide Caspio with prompt written notice of the Claim and permit Caspio to control the defense, settlement, adjustment or compromise thereof. Developer may employ counsel at its own expense to assist it with respect to any such claim; provided, however, that if such counsel is necessary because of a conflict of interest of either Caspio or its counsel or because Caspio does not promptly assume control of such Claim, Caspio will bear the expense of such counsel. Developer will have no authority to settle any Claim on behalf of Caspio.
Developer may not assign this Agreement or any interest or rights granted hereunder to any third party without the prior written consent of Caspio. A change of control or reorganization of Developer pursuant to a merger, sale of assets or stock (other than an initial public offering) will be deemed to be an assignment under this Agreement. This Agreement will terminate immediately upon occurrence of any prohibited assignment.
7.2 RELATIONSHIP OF PARTIES
The Parties are independent contractors under this Agreement and no other relationship is intended, unless specified by a separate agreement. Without limitation, the Parties expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary, or other special relationship. Neither Party will act in a manner that expresses or implies a relationship other than that of independent contractor. Neither Party has the right or authority to, and will not, assume or create any obligation of any nature whatsoever on behalf of the other Party or bind the other Party in any respect whatsoever.
Any notice required or permitted to be given by either Party under this Agreement shall be in writing, e-mail, or facsimile and will be deemed given: (a) when delivered personally; (b) when sent by confirmed facsimile or e-mail (followed by the actual document in air mail/air courier); (c) three days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one day after deposit with a commercial express courier specifying next day delivery (or two days for international courier packages specifying two-day delivery), with written verification of receipt. Any notice to Caspio shall be addressed as follows: General Counsel, Caspio Inc., 2953 Bunker Hill Lane, Suite 201, Santa Clara, CA 95054. Any notice to Developer shall be delivered to the attention and address of the Developer Contact, and if no address is provided, delivery shall be made to Developer’s business headquarters. Notwithstanding anything to the contrary herein, all Transmittal Letters sent by Caspio to Developer shall be deemed properly given hereunder when sent by confirmed facsimile or electronic mail (need not be followed by the actual document in air mail/air courier); and all of Developer’s responses to the Transmittal Letters shall be deemed properly given when sent by confirmed facsimile or electronic mail (need not be followed by the actual document in air mail/air courier).
7.4 EXPORT COMPLIANCE
Developer hereby acknowledges that Products, technology or direct products thereof supplied by Caspio in connection with the Program or the CDN Website (“Caspio Technology”) are subject to export controls under the laws and regulations of the United States (U.S.). Developer shall comply with such laws and regulations governing use, export, re-export, and transfer of Caspio Technology and will obtain all required U.S. and local authorizations, permits, or licenses. Caspio and Developer each agree to provide the other such information and assistance as may reasonably be required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents. Developer agrees to maintain full, true, and accurate records of exports, re-exports, and transfers of Caspio Technology, purchased and deployed or distributed, according to U.S. and local laws (minimum 5 years).
7.5 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to its conflicts of laws or its principles. You agree, in the event any claim or suit is brought in connection with the Caspio’s provision of the Services to you, to submit to the jurisdiction of the state of California, and agree to the courts of Santa Clara County, California as the appropriate forum.
7.6 NO WAIVER
Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the Parties. This Agreement may only be modified by a written document executed by the Parties hereto, except the Program Guidelines may be revised from time to time in the manner specified herein.
All notices, consents demands and approvals under this Agreement must be delivered in writing by courier, by fax, or by certified or registered mail (postage prepaid and return receipt requested) to Caspio at the address provided below and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.
2953 Bunker Hill Lane, Suite 201
Santa Clara, CA 95054 USA
Relationship of the Parties. The parties hereto are independent contractors. Neither party (nor any agent or employee of that party) is the representative of the other party for any purpose, and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
Export Control. You will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the Services or Deliverables are used and, in particular, you will not export or re-export any Deliverables without all required United States and foreign government licenses. You acknowledge and understand that the Deliverables may contain encryption technology that may require an export license from the U.S. State Department and that export or re-export of the Deliverables to certain entities and certain countries is prohibited. You will defend, indemnify and hold harmless Caspio from and against any violation of such laws or regulations by You or any of its agents, officers, directors, or employees.
Assignment. You may not assign or transfer, by operation of law or otherwise, any of your rights under this Agreement to any third party without Caspio’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.
No Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
U.S. Government End Users. The Deliverables are a “commercial item” as that term is defined at 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 49 C.F.R. 227.7202-4, all U.S. Government end users acquire the Deliverables with only those rights set forth therein.
Choice of Law. This Agreement will be governed by the laws of the State of California in the United States of America, as such laws apply to contracts between California residents negotiated, executed and performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal court in the Northern District of California or in state court in Santa Clara County, California, and each party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding. This Agreement will be written and construed in the English language.
Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms on any purchase order or similar document submitted by you to Caspio will have no effect.
If you have any questions or comments about this Agreement, or Caspio’s services, contact us on the Caspio.com website.