Caspio Consulting Services Agreement

BY USING OR ORDERING CASPIO CONSULTING SERVICES, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS.

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

1. CONSULTING SERVICES PROVIDED BY CASPIO TO YOU

   1. Statement of Work. From time to time you may purchase consulting services from Caspio by executing a separate statement of work with Caspio (“Statement of Work” or “SOW”) specifying (a) the services to be provided and/or deliverables created by Caspio; (b) a schedule for completion of Services and delivery of Deliverables; (c) the fees and other specific terms under which Caspio will provide such Services and Deliverables; and (d) any other terms upon which the parties agree. The parties may modify a SOW only by a written change order signed by both parties.
   2. Training. Caspio will provide training services to you, if any, as specified in accordance with the rates and procedures on a SOW.

2. DELIVERY AND ACCEPTANCE

   Deliverables will be deemed complete when (a) for electronic delivery, Caspio provides you with the ability to download the Deliverables; or (b) for applications, upon Caspio notifying you of the availability of the application in your Caspio account. Deliverables will be deemed accepted three (3) business days after delivery, unless Caspio receives a written notification from you.

3. YOUR OBLIGATIONS

   As a condition to Caspio’s obligations under this Agreement, you must provide as follows: (a) unless included through the Statement of Work, a Caspio Platform account that is required to operate the Deliverables; (b) access to your Caspio Platform account during the performance of the consulting services; and (c) cooperation and assistance in understanding, verifying and delivering the Deliverable as Caspio reasonably requests. Such cooperation and assistance will include, without limitation, timely providing to Caspio answers to questions and technical consultation.

4. PAYMENT

   1. Fees. In consideration of the services provided, you will pay the fees specified in the applicable Statement of Work.
   2. Expenses. You will reimburse Caspio monthly in arrears for Caspio’s reasonable travel and other actual out-of-pocket expenses that were previously approved by you and incurred in furtherance of a Statement of Work. Caspio will keep complete records related to such expenses and, upon your request, will submit copies of such records with the applicable invoice.
   3. Payment Terms. The fees under a Statement of Work are due in accordance with the schedule set forth therein. If no such schedule is provided, then Caspio will invoice you on a monthly basis, with payment due within thirty (30) days of the issuance of such invoice. Expense reimbursements are also due within thirty (30) days of invoice. In the event you pre-pay for any Services, you must request that such Services be completed within a period of one (1) year from payment date of such fees. Payments for invoices over $5,000 must be made via company check, wire transfer, or ACH transfer.
   4. Caspio reserves the right to suspend your access to the Service and disable your Caspio Platform account for your failure to remit payment within ten (10) days of the due date. Caspio will resume providing you with access to the Service upon your payment of the amount due to Caspio under this Agreement, provided that such late payment and required account re-activation fees are received within 60 days of due date. If payments are not received within 60 days of due date, your Caspio Platform account will be purged and its data and applications (including the services provided under the Statement of Work) will be permanently deleted.
   5. Taxes. The amounts payable to Caspio under this Agreement do not include any taxes, levies, or similar governmental charges, however designated, including any related penalties and interest. You will pay for (or reimburse Caspio for the payment of) the foregoing.

5. TERM AND TERMINATION

   1. Agreement Term. The term of this Agreement will commence on the Effective Date of the Statement of Work and continue until terminated under Section 5.3.
   2. Statements of Work. Unless otherwise specified therein, a Statement of Work is effective as of the date it is executed by both parties, and (unless earlier terminated pursuant to Section 5.3) will remain in effect until the work specified therein is complete.
   3. Termination. Either party may terminate this Agreement at any time upon five (5) days’ written notice if no Statements of Work are then in effect. You may terminate any or all Statements of Work at any time (but without refund) by giving Caspio thirty (30) days’ written notice. Either party may terminate for cause (a) this Agreement, inclusive of all Statements of Work, or (b) only the specific Statement of Work giving rise to the breach, by giving the breaching party written notice of termination, and specifying in such notice the alleged breach. The breaching party will have a period of thirty (30) days after such notice is served to cure the breach described therein. If the breach is cured within the thirty (30) day period, then this Agreement (or, if specified in the original notice, the particular Statement of Work designated for termination) will remain in effect. If the breach is not cured within such period, then this Agreement (or specific Statements of Work, as the case may be) will automatically terminate upon the conclusion of the thirty (30) day grace period. Either party may terminate this Agreement (including all Statements of Work) at any time for cause if the other party files a petition or seeks relief under the bankruptcy or insolvency laws of any state or the United States.
   4. Effect of Termination. Following termination of this Agreement in its entirety (a) each party will return to the other party the Confidential Information of the other party that it obtained during the course of this Agreement; (b) all Statements of Work will terminate; and (c) you will immediately pay to Caspio outstanding fees or expenses related to this Agreement and all Statements of Work. Following termination of only a specific Statement of Work (i) each party will return to the other party the Confidential Information of the other party that it obtained during the course of performing such Statement of Work; and (ii) you will immediately pay to Caspio any outstanding fees or expenses related to such Statement of Work. Sections 5.4 and 6 through 12 will survive expiration or termination of this Agreement or any Statement of Work hereunder.

6. INTELLECTUAL PROPERTY OWNERSHIP

   You maintain any and all right, title and interest in and to proprietary materials provided by you. Unless otherwise specified in a Statement of Work, all Deliverables and the copyright, trademark, service mark, trade secret, patent, patent application, moral right, contractual right of non-disclosure or any other intellectual property or proprietary right therein, however arising (the “Intellectual Property Rights”), will remain the exclusive property of Caspio or its suppliers, regardless of whether you or your agents contribute to the conception or join in the development of the deliverable.

7. CONFIDENTIALITY

   “Confidential Information” means any information related to the disclosing party’s products, services or business (or that of its suppliers, customers and partners) that is either (a) marked as confidential (or bears similar legend), or, if disclosed orally, is confirmed in writing as confidential within thirty (30) days after the initial disclosure; or (b) if not so marked or confirmed, is of a type that a reasonable business person under the same or similar circumstances of disclosure would understand to be confidential. Confidential Information or data is not Confidential Information to the extent that the party receiving such information (the “Recipient”) can prove by credible evidence that the information or data (i) was in the public domain at the time it was communicated to Recipient; (ii) entered the public domain subsequent to the time it was communicated to Recipient through no fault of Recipient; (iii) was in the Recipient’s possession not in violation of any obligation of confidentiality at the time it was communicated to Recipient; (iv) was disclosed to Recipient by a third party not in any violation of any obligation of confidentiality; or (v) was developed by employees or agents of Recipient without use of or reference to the Confidential Information of the party disclosing the Confidential Information (the “Discloser”). Recipient will use Discloser’s Confidential Information solely for purposes expressly permitted by this Agreement, and will disclose the Confidential Information solely to employees who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality consistent with and no less restrictive than the duty hereunder. Recipient will protect Discloser’s Confidential Information from unauthorized access or disclosure in the same manner as it protects its own confidential or proprietary information, but in no event less than reasonable care. Recipient may disclose Discloser’s Confidential Information to third parties to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Recipient promptly notifies Discloser in writing of such required disclosure and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. Neither party will disclose any terms of this Agreement or any SOW to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except in connection with a proposed merger (of any kind), or any debt or equity financing or any public offering of shares or sale of such party’s business.

   You shall not directly or indirectly (a) solicit any person to leave employment with Caspio or hire any person who was an employee of Caspio within the previous six (6) months; or (b) solicit or transact business with any customer, client, or vendor of Caspio for purposes of providing products or services that are competitive with those provided by Caspio.  A violation of the foregoing obligations shall be deemed a material breach of this Agreement.

8. INDEMNIFICATION

   You shall indemnify and hold Caspio, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim by a third party (a) alleging that use of the Services infringes the rights of, or has caused harm to, a third party; (b) that, if true, would constitute a violation by you of your representations and warranties; or (c) arising from the breach by you or your users of this Agreement, provided in any such case that Caspio (i) gives written notice of the claim promptly to you; (ii) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Caspio of all liability and such settlement does not affect Caspio’s business or Service); (iii) provides to you all available information and assistance; and (iv) has not compromised or settled such claim.

   Caspio shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim by a third party (a) alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (b) that, if true, would constitute a violation by Caspio of its representations or warranties; or (c) arising from breach of this Agreement by Caspio; provided that you (i) promptly give written notice of the claim to Caspio; (ii) give Caspio sole control of the defense and settlement of the claim (provided that Caspio may not settle or defend any claim unless it unconditionally releases you of all liability); (iii) provide to Caspio all available information and assistance; and (iv) have not compromised or settled such claim. Caspio shall have no indemnification obligation, and you shall indemnify Caspio pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware, or business process(s).

9. WARRANTIES

   1. Performance of Services. Caspio will perform all Services in a competent and professional manner. Each of Caspio’s staff members will have the proper skill, training and background to perform his or her assigned tasks. All Services will be performed in accordance with the applicable Statement of Work.
   2. Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION, CASPIO PROVIDES ALL SERVICES AND DELIVERABLES TO YOU ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULT, EFFORT, TITLE AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND RESULTS OBTAINED WITH RESPECT TO THE SERVICES AND DELIVERABLES PROVIDED HEREUNDER IS WITH YOU. THERE IS NO WARRANTY THAT THE INFORMATION PROVIDED HEREUNDER, CASPIO’S EFFORTS, OR THE SERVICES OR DELIVERABLES IT PROVIDES WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. YOU ACKNOWLEDGE AND AGREE THAT THE FEES SPECIFIED IN THIS AGREEMENT REFLECT THE NEGOTIATED WARRANTY PROVISIONS. TO THE EXTENT THAT CASPIO CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

10. LIMITATION OF LIABILITY

    IN NO EVENT WILL CASPIO BE LIABLE FOR (a) ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA OR LOST PROFITS OR BUSINESS INTERRUPTION, ARISING FROM OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, EVEN IF CASPIO HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE DELIVERABLES OR SERVICES. REGARDLESS OF THE CAUSE OF ACTION, CASPIO’S TOTAL CUMULATIVE LIABILITY IN CONNCECTION WITH THIS AGREEMENT AND THE DELIVERABLES OR ANY SERVICES PROVIDED HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE DELIVERABLES OR SERVICES GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE THAT THE FEES PAID PURSUANT TO THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT.

11. GENERAL, NOTICES

    All notices hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, by overnight courier or, in the case of notices to Customer, by email, addressed as follows:

    To Customer: By email to the Account’s primary email address (as may be updated by Customer from time to time).

    To Caspio: Caspio, Inc., Attn: Legal Department, 1286 Kifer Road, Suite 107, Sunnyvale, CA 94086 USA with a copy by email to legal@caspio.com or to such other persons or places as Caspio may from time to time designate by written notice to Customer.

    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 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.