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ExpressDB

Terms of Service Agreement

Last Modified May 17, 2013.

The following are the terms and conditions for use of ExpressDB online service (the "Service") between Caspio Inc. ("Caspio") and you (either an individual or a legal entity that you represent as an authorized employee or agent). Please read them carefully. This Service may be used by individuals who are at least eighteen (18) years old or minors who have parental permission to open and maintain an account; provided, however, in no event is any individual under the age of thirteen (13) permitted to use the Service.

BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SERVICE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE ("AGREEMENT").

The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.

You also agree to Caspio's Acceptable Use Policy the current version of which is posted at http://www.caspio.com/company/legal/acceptable-use-policy.aspx.

DEFINITIONS

"Account" refers to the billing account for the Service.

"Submissions" refers to the number of submissions from forms which are linked to tables in your Account.

"Customer Data" means the data in tables stored in your Account which is collected through use of Caspio software.

"Processing Software" means the proprietary Caspio software that processes submissions to your activated forms.

"Deploy Code" means, collectively, the proprietary Caspio software, that is installed on a web page for the purpose of linking a form to your Account, together with any on-line documentation, and any fixes, updates and upgrades provided to you. The Deploy Code also refers to a URL, or the address of a web page, containing a link to the Service and an Application Key.

"Application Key" means, the proprietary string of characters, also known as a key, which is generated by the Software to uniquely identify a table or form in your Account.

"Servers" mean the servers controlled by Caspio upon which the Processing Software and Customer Data are stored.

"Service" means the web-based ExpressDB ("EDB") service that provides repository, tools, and services to capture data from web forms or web-based programs.

"Software" means the Deploy Code, the Processing Software and the Application Key.

"Website" means the collection of pages containing the Deploy Code.

MEMBER ACCOUNT, PASSWORD, AND SECURITY

To register for the Service, you shall provide Caspio with current, complete and accurate information as prompted by the registration form, including your e-mail address. Upon registration, you will be emailed appropriate account login information and an activation code which is required to activate your account. You are solely responsible for any and all activities that occur under your Account. You agree to notify Caspio immediately upon learning of any unauthorized use of your Account or any other breach of security. From time to time, Caspio support staff may log into the Service under your Account in order to maintain or improve service, including providing you assistance with technical or billing issues. You hereby acknowledge and consent to such access.

NONEXCLUSIVE LICENSE

Subject to the terms and conditions of this Agreement, Caspio hereby grants you a limited, revocable, non-transferable, non-exclusive license to use the Software.

Subject to the terms and conditions of this Agreement, you may remotely access the Service at https://expressdb.caspio.com/, http://www.caspio.com/ and other Servers provided by Caspio. Your use of and access to the Software and the Service is conditioned upon the following:

You shall not (i) copy, modify, adapt, translate or otherwise create derivative works of the Software, or permit others to do so; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except to the extent expressly permitted by the law in effect in the jurisdiction in which you are located, or permit others to do so; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Deploy Code or the Service; (iv) remove any proprietary notices or labels on the Deploy Code or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You shall use the Software, Service and Reports solely for your own use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You shall comply with all applicable laws and regulations in your use of and access to the Software and Service.

Unless otherwise agreed in writing between Caspio and you, you may not use or access the Service if you are (i) an entity or individual that markets, distributes or provides database software or services or (ii) an entity or individual that will access or use the Service on behalf of an entity or individual that markets, distributes or provides database software or services.

This license will terminate immediately if you fail to comply with the terms of this Agreement. Upon such termination, you shall destroy all originals and copies of the Deploy Code in your possession and cease any further use of the Service without the express written consent of Caspio.

USAGE RULES

The Service is offered to you to help you with the operation of your business. You agree not to use the products or services provided through or in connection with the Service to: (i) conduct any business that is unlawful, (ii) infringe or otherwise violate a third party's rights, (iii) collect information about third parties, without their express consent; (iv) interfere with or disrupt the Caspio's service or servers.

Caspio reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, from Caspio's Servers, at Caspio's sole discretion, without any notice.

FEES AND SERVICES

The fees for the Service are as posted at http://www.expressdb.com/pricing.asp, unless otherwise stated on a valid written or electronic purchase order (which has been accepted by Caspio in writing); provided, however, that any additional or conflicting terms contained in any purchase order, standardized form or correspondence shall be null and void unless such terms and conditions are contained in an amendment to this Agreement duly executed by both parties hereto. Caspio reserves the right to suspend or terminate your access to the Service for your failure to remit payment in a timely manner. Caspio may change its fees and payment policies for the Service from time to time. The changes to the policy are effective after Caspio provides you with at least thirty (30) days notice of the changes by posting the changes at http://www.caspio.com/ or http://www.expressdb.com/pricing.asp. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with using the Service.

Amounts not paid by you to Caspio when due, may bear interest at the lesser of (i) one and one-half percent (1.5%) per month, and (ii) the maximum rate permitted by applicable law. If you notify Caspio, Inc. in writing that you are terminating this Agreement, fees pre-paid by you to Caspio for the Service will be credited back to your applicable credit card on a pro-rated basis (except to the extent such termination is due to your breach of this Agreement) within forty-five (45) days after receipt of your notice of termination. Caspio is not required to refund directly to you any amounts paid hereunder. It is your responsibility to make the appropriate changes and notify Caspio if your credit card has expired.

You understand and agree that your Service fee consists of two separate charges: a monthly fee and a per-submission fee. The monthly fee applies to all accounts even if your account is inactive. Monthly fees automatically recur every month unless you properly close your account with Caspio. The per-submission fee applies to all submissions received by us through the Deploy Code provided to you. The submission fee takes into account all submissions, including those used for testing and those made by unauthorized users of your forms. Caspio provides you with ways to prevent unauthorized use of your forms. It is your responsibility to learn these prevention methods and apply them where needed. Monthly fees are charged at the beginning of every month and submission fees are charged throughout the month once the accrued amount reaches a preset minimum set by Caspio.

If you are pre-paying fees, monthly fees and submission fees shall be charged and deducted from your pre-paid amount as they accrue.

AUTOMATIC RENEWAL

Unless the Agreement is earlier terminated in accordance with its terms or unless a specific new Agreement term is requested by you, this Agreement shall automatically renew at the end of each prior Agreement Term, either for the same period of time as the prior Agreement Term or for one calendar month, whichever is longer. When a new Agreement term begins, the then current Service Agreement shall apply.

The term of Free ExpressDB accounts is indefinite and may be terminated at any time at Caspio's sole discretion.

FREE TRIALS

From time to time Caspio may offer a free trial of the Service to prospective customers. Caspio reserves the right to discontinue the offering of free trial Service without notice. Free trials are meant to let prospective customers experience the Service before committing to it. Use of a free trial Service for anything other than the above is prohibited. Furthermore, you agree that you are not allowed to open more than one trial account, and/or upon termination of your free trial account open a new trial account.

One type of free trial offering requires payment information at the time of sign up. This type of free trial account automatically converts to a regular paying account at the end of the trial period. If the trial account is not closed within the trial period, regular fees will apply.

Another type of free trial account requires no payment information at sign up. Unless you convert your free trial account to a paying account within fourteen (14) days of opening your account, Caspio reserves the right to discontinue your account at the end of the 14-day trial period and delete all your Customer Data and account information without notice.

FREE ACCOUNTS

Free ExpressDB account users additionally agree that you (i) do not use more capacity and resources than allocated to your account, (ii) do not hide or otherwise tamper with Caspio branding on your confirmation pages, (iii) maintain accurate and up to date contact and billing information, and (iv) agree to receive sales and marketing emails from us and our partners. Caspio at its sole discretion immediately terminates your service, upgrades your package to paying, or charges appropriate fees if any of the requirements above are not met.

BETA PROGRAMS

From time to time Caspio may offer access to beta software to interested parties. Beta software is software that is not officially released, may contain problems or bugs, and is not warranted by Caspio in any way. Beta software is provided "as is" for evaluation and testing purposes only, and beta users are advised to not rely on the features or performance of the software for any reason. By registering for and using Caspio beta software, you acknowledge that you are accessing a pre-release evaluation of the Service and that the Service and Software may contain bugs, may not operate properly or perform all intended functions, may interfere with the functioning of other software applications, and may cause errors, data loss or other problems. Caspio shall not be held liable for any damages, including but not limited to direct, indirect, incidental or consequential damages for loss of data, profits, or revenue incurred by you or third parties.

As a beta user, you agree that you shall promptly report to Caspio any failure of the Service to perform in accordance with applicable documentation, and will provide such other information relating to the Service as Caspio may reasonably request. At Caspio's request, you will provide a written evaluation of the Service in a form reasonably requested by Caspio. You grant Caspio an unrestricted, royalty-free right to use all such feedback for purposes of marketing, public relations, correcting and/or enhancing the Service and developing additional products and services.

Caspio's beta programs have a fixed duration. At the end of a beta program you may be offered the opportunity to convert your beta account to a regular Account. Beta accounts that are not converted to a regular Account are deleted at the end of the beta program and all Customer data is lost. You agree that if you do not convert your beta account to a regular Account, you will remove all Caspio Software and Deploy Code from your websites immediately at the conclusion of the beta program.

PRIVACY

By registering for the Service and implementing the Deploy Code, you authorize Caspio to collect, store and process Customer Data subject to the terms of this Agreement and the Caspio Privacy Policy ("Privacy Policy"), the current version of which is posted at http://www.caspio.com/company/legal/privacy-statement.aspx, and you represent and warrant that the collection, storage and processing of such Customer Data, as provided in this Agreement and consistent with the Privacy Policy, does not breach or violate any contractual or legal obligations that you may have to visitors to the Website and the users of the forms served through the Service. You further understand and agree that the Privacy Policy may change from time to time.

When you initially create an account, you will be asked whether or not you wish to receive marketing and other non-critical Service-related communications from Caspio and our partners from time to time. You may opt out of receiving such communications at that time or at any subsequent time by changing your preference under Account Information. Free ExpressDB account users will not have the option of opting out unless they terminate their free account or upgrade to a paying account. Note that because the Service is a hosted online application, Caspio occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that Caspio can disclose the fact that you are a paying customer and the edition of the Service that you are using.

You shall ensure that during use of the Service, the Website shall have a privacy policy that (i) clearly and conspicuously notifies visitors to the Website that the Website is using services hosted by Caspio; (ii) provides a direct link to the Privacy Policy web-page with the following language, "You should refer to the Caspio Privacy Policy to learn how they collect and use information. You can find Caspio Privacy Policy here: http://www.caspio.com/company/legal/privacy-statement.aspx"; (iii) otherwise fully complies with applicable law; and (iv) protects privacy in a manner consistent with the Privacy Policy and with the principles of an industry-approved privacy certification program in the applicable jurisdiction (e.g., TRUSTe).

ACCOUNT INFORMATION AND DATA

Caspio does not own any data, information or material that you or your users submit to the Service in the course of using the Service "Customer Data". You, not Caspio, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Caspio shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Caspio reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Caspio shall have no obligation to maintain or forward any Customer Data.

TAXES

Caspio shall not be liable for taxes and other governmental fees and assessments to be paid which are related to purchases made from you or from the Caspio's server. You agree that you shall be solely responsible for all taxes, fees, and assessments of any nature associated with products or services sold through the use of or with the aid of Services provided to you by Caspio.

SECURITY AND STORAGE OF INFORMATION

Caspio has security measures in place to help prevent the loss, misuse or adulteration of Customer Data stored on the Servers. These measures include Secure Socket Layer encryption and the use of a firewall. Any question or concern about security can be addressed to EDB Support. Notwithstanding the foregoing, Caspio shall have no obligation or responsibility to preserve, archive, store or otherwise protect the integrity of the Customer Data against corruption, deletion or destruction once this license is terminated. Customer Data is not stored for an indefinite amount of time.

ENHANCING AND MODIFYING THE SERVICE

Caspio reserves the right to enhance, upgrade, or modify the Service with or without notice to you. Caspio shall not be liable to you or any third party should Caspio exercise its right to enhance or modify the Service.

INDEMNIFICATION

You shall indemnify, hold harmless and defend Caspio, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Caspio or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Caspio or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of this Agreement, (ii) your negligence or willful misconduct in connection with the Services, or (iii) your violations of applicable law in connection with the Services.

THIRD PARTY TERMS

If you provide access to your forms, your Account or any portion thereof to any third party or use the Service to collect information from or on behalf of any third party ("Third Party"), whether or not you are authorized to do so by Caspio, the terms of this Section shall apply to you.

You shall ensure that each Third Party abides by the terms of this Agreement. Any information of a Third Party that is considered confidential information of such Third Party shall be treated as confidential by you and shall not be disclosed to any other third party. Each Third Party shall be considered a customer of you, and not a customer of Caspio; provided, however, that Caspio reserves the right to enforce the terms of this Agreement against such Third Parties and you shall provide that Caspio is a third party beneficiary with respect to your agreement with the Third Party.

Caspio makes no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, you shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Caspio, the Service or the Software, or use thereof. You shall indemnify, hold harmless and defend Caspio, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Caspio or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Caspio, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) any representations and warranties made by you concerning any aspect of the Service or the Software to Third Parties; (ii) any claims made by or on behalf of any Third Party pertaining directly or indirectly to your use of the Service or the Software; (iii) violations of your obligations of privacy to any Third Party; and (iv) any claims with respect to acts or omissions of Third Parties in connection with the Services or the Software that would otherwise be a breach of this Agreement by you.

DISCLAIMER OF WARRANTIES

Caspio does not warrant or represent that the use of the Service will be correct, accurate, timely or otherwise reliable. You specifically agree that Caspio shall not be responsible for unauthorized access to or alteration of the Customer Data or data from the Website.

THE SERVICE AND THE SOFTWARE ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY CASPIO, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE AND THE SOFTWARE INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. CASPIO DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT ERRORS WILL BE FIXED, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY

CASPIO SHALL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF CASPIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOREGOING PARAGRAPH.

SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.

Caspio's cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the total fees paid by you to Caspio for use of the Service.

PROPRIETARY RIGHTS NOTICE

Title, ownership rights, and intellectual property rights in and to the Software, Caspio's confidential information, and any other Caspio information and materials, and the Service shall remain with Caspio. Caspio reserves all rights not expressly granted to you in this Agreement.

CUSTOMER REFERENCE

You hereby grant Caspio the right to use your trade name and/or your corporate logo in connection with Caspio's promotional materials and/or website to identify you as a customer of Caspio.

CONFIDENTIALITY

You may have access to information that is confidential to Caspio ("Confidential Information"). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Caspio's Confidential Information shall include, but not be limited to, the Service, Software, documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, licensee names, prospective licensee names, the terms and pricing under this Agreement, and the results of any comparative or other benchmarking tests with respect to the Service or the Software, in each case regardless of whether such information is identified as confidential. Confidential Information includes all information received from third parties that you are obligated to treat as confidential and oral information that is identified by Caspio as confidential. This obligation of confidentiality does not apply to any information that is or becomes a part of the public domain through no act or omission by you, was in your lawful possession prior to the disclosure without any restriction on disclosure, or is independently developed by you without use of or reference to such Confidential Information. If you are required to disclose such Confidential Information to any court or government authority, then you agree to provide Caspio with sufficient written notice prior to your disclosure. Such obligations of confidentiality shall survive any termination of this Agreement.

You agree, unless required by law, not to make Confidential Information available in any form to any third party (including but not limited to entities or individuals that market, distribute or provide web database software or services) except to your employees or agents who are required to know to allow you to exercise your rights under this Agreement, or to use the Confidential Information for any purpose other than in the performance of this Agreement. You shall not disclose the results of any performance tests of the Software or Service to any third party without Caspio's prior written approval. You agree to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by your employees or agents in breach of this Agreement. You acknowledge and agree that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this section of the Agreement and that such breach would cause irreparable harm to Caspio; therefore Caspio shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement.

U.S. GOVERNMENT RIGHTS

If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, shall be subject in all respects to the commercial license rights and restrictions provided in this Agreement.

TERMINATION

This Agreement and the license granted herein will terminate automatically if you fail to comply with the limitations described above. Upon termination, you must remove the Deploy Code and all other Caspio materials and information from the Website. Caspio reserves the right to terminate this Agreement and your use of the Service for any reason or no reason.

To terminate your use of the Service, you must visit http://www.caspio.com/support/cancellationform.aspx, fill out the form and click on "Close Account", to request to remove your Account. Upon receipt and verification, a Caspio representative will delete your Account and all your Customer Data. You must also remove the Deploy Code from your Website. You will be charged for the billing period in which you terminate your account according to the terms of this agreement. If you do not formally request the removal of your Account, you will continue to be billed for the Service.

MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES

Caspio reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Service, or any policy governing the Service, at any time, by posting the new agreement to the Caspio site located at http://www.caspio.com/company/legal/terms-of-service/express-db.aspx. You are responsible for regularly reviewing the site. Your continued use of the Service following Caspio's posting of the change(s) will constitute your acceptance of such change(s).

MISCELLANEOUS; APPLICABLE LAW AND VENUE

Caspio shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between the parties concerning its subject matter, and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by either party, and any such attempted assignment shall be void and of no effect without the advance written consent of the other party, such consent not to be unreasonably withheld or delayed; provided, however, that such consent shall not be required if either party assigns this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets, unless the surviving entity is a direct competitor of Caspio. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective heirs, successors, assigns, and legal representatives. 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.

FOR MORE INFORMATION

If you have any questions or comments about this Agreement, Caspio's services, or your experience with the Service, contact us on the Caspio.com website.

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