Consulting Services Agreement

This Consulting Services Agreement (“CSA”) is part of the Terms of Service and applies when Customer purchases consulting services from Caspio (“Consulting Services”).

1. DEFINITIONS

Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Terms of Service.

“Consulting Services” means the professional services, implementation services, training, and related work performed by Caspio for Customer under a SOW.

“Deliverables” means the applications, configurations, reports, documentation, or other work product created by Caspio for Customer as specified in a SOW.

“SOW” means any statement of work, professional services agreement, project proposal, or similar document executed by the parties that describes the scope, schedule, and fees for Consulting Services.

2. CONSULTING SERVICES

Customer may purchase Consulting Services from Caspio by executing a statement of work (“SOW”) specifying: (a) the services to be provided and deliverables to be created; (b) a schedule for completion; (c) fees and payment terms; and (d) any other terms agreed upon by the parties. A SOW may be modified only by a written change order signed by both parties.

Caspio will ensure that all personnel performing Consulting Services who access Customer Data are subject to the data protection obligations set forth in the Terms of Service and the Data Processing Agreement.

3. DELIVERY AND ACCEPTANCE

Deliverables will be deemed complete when: (a) for electronic delivery, Caspio provides Customer with the ability to download the Deliverables; or (b) for applications, Caspio notifies Customer of availability in Customer’s Account.

Deliverables will be deemed accepted five (5) business days after delivery unless Caspio receives written notice of rejection specifying in reasonable detail how the Deliverable fails to conform to the applicable SOW. Upon receipt of a valid rejection notice, Caspio will use commercially reasonable efforts to correct the identified deficiencies and redeliver. If after two revision cycles the parties cannot agree that the Deliverable conforms to the SOW, either party may terminate the applicable SOW.

Requests for modifications or additions beyond the scope of the applicable SOW are not grounds for rejection and must be addressed through a written change order.

4. CUSTOMER OBLIGATIONS

As a condition to Caspio’s obligations under this CSA, Customer will: (a) unless otherwise specified in the SOW, maintain an active Caspio Platform account required to operate the Deliverables; (b) provide Caspio with access to Customer’s Account during performance of the Consulting Services; and (c) provide timely cooperation and assistance as Caspio reasonably requests, including answering questions and providing technical consultation necessary to deliver the Consulting Services.

If Customer’s failure to meet these obligations delays the Consulting Services, Caspio may adjust the project schedule accordingly, and any additional costs resulting from such delay will be Customer’s responsibility. If Customer’s delay exceeds thirty (30) days, Caspio may terminate the applicable SOW upon written notice, and Customer will pay for all Consulting Services performed and expenses incurred through the date of termination.

5. PAYMENT

Fees. Customer will pay the fees specified in the applicable SOW.

Expenses. Customer will reimburse Caspio monthly in arrears for reasonable travel and other actual out-of-pocket expenses previously approved by Customer and incurred in furtherance of a SOW. Caspio will maintain records of such expenses and provide copies upon Customer’s request.

Payment Terms. Fees for implementation services are due in full before work begins, unless otherwise specified in the applicable SOW. For all other Consulting Services, fees are due in accordance with the schedule set forth in the applicable SOW. If no schedule is specified, Caspio will invoice Customer monthly, with payment due within thirty (30) days of invoice date. Expense reimbursements are also due within thirty (30) days of invoice. Pre-paid Consulting Services must be scheduled for completion within one (1) year from the date of payment. Payments for invoices exceeding $5,000 USD (or its equivalent in the applicable currency) must be made via wire transfer or electronic funds transfer.

Additional Fees. Any Consulting Services requested by Customer beyond the scope of an existing SOW, including work arising from change orders, Customer-caused delays, re-mobilization, or additional revision cycles beyond those specified in the SOW, will be scoped and priced in a separate SOW or written change order before work begins. Additional costs arising from Customer-caused delays under the Customer Obligations section will be documented and invoiced by Caspio, and Customer will pay such costs within thirty (30) days of invoice.

Late Payment. Failure to remit payment is subject to the payment and account suspension terms set forth in the Terms of Service.

Taxes. Amounts payable under this CSA do not include taxes, levies, or similar governmental charges. Customer is responsible for all applicable taxes, excluding taxes based on Caspio’s net income.

6. TERM AND TERMINATION

Term. This CSA is part of the Terms of Service and remains in effect for the duration of the Terms of Service. Each SOW is effective as of the date executed by both parties and remains in effect until the work specified therein is complete or the SOW is terminated under this section.

Termination for Convenience. Either party may terminate this CSA upon five (5) days’ written notice if no SOWs are then in effect. Customer may terminate any SOW at any time by giving Caspio thirty (30) days’ written notice. Upon such termination, Customer will pay for all Consulting Services performed and expenses incurred through the date of termination. Pre-paid fees for services not yet performed will be refunded, less any costs incurred by Caspio in winding down the engagement.

Termination for Cause. Either party may terminate this CSA (including all SOWs) or only the specific SOW giving rise to the breach, by giving written notice specifying the alleged breach. The breaching party will have thirty (30) days to cure. If the breach is not cured within that period, the CSA or applicable SOW will automatically terminate. Either party may terminate this CSA immediately if the other party files for bankruptcy or seeks relief under insolvency laws.

Effect of Termination. Upon termination of this CSA, all SOWs will terminate and Customer will pay all outstanding fees and expenses within thirty (30) days. Upon termination of a specific SOW, Customer will pay all outstanding fees and expenses related to that SOW within thirty (30) days. Caspio will deliver to Customer any completed or in-progress Deliverables as of the date of termination. Confidential information is governed by the Terms of Service.

Survival. The following sections survive termination of this CSA or any SOW: Sections 3, 5, 7, 8, 9, 10, 11, 12, 13, and 14 (Delivery and Acceptance, Payment, Intellectual Property, Confidentiality, Non-Solicitation, Indemnification, Warranties, Limitation of Liability, Insurance, and General Provisions).

7. INTELLECTUAL PROPERTY

Customer retains all right, title, and interest in proprietary materials and pre-existing intellectual property provided by Customer in connection with the Consulting Services.

Upon full payment, Customer will own all Deliverables created under a SOW. Notwithstanding the foregoing, Caspio retains all right, title, and interest in the Caspio Platform, its pre-existing intellectual property, and any tools, templates, frameworks, or reusable components incorporated into the Deliverables. Customer’s use of the Deliverables requires an active Caspio Platform subscription.

Unless otherwise specified in a SOW, Caspio may incorporate general knowledge, techniques, and reusable components developed during the engagement into its other products and services, provided that such use does not include Customer’s Confidential Information.

8. CONFIDENTIALITY

Confidential Information exchanged in connection with the Consulting Services is governed by the confidentiality provisions of the Terms of Service. In addition, neither party will disclose the terms of any SOW to anyone other than its employees, contractors, partners, attorneys, accountants, and professional advisors who have a need to know and are bound by confidentiality obligations, except in connection with a proposed merger, financing, or sale of such party’s business.

9. NON-SOLICITATION

During the term of this CSA and for twelve (12) months following its termination, Customer will not directly or indirectly solicit or hire any person who is or was an employee or contractor of Caspio within the preceding twelve (12) months. A violation of this section is a material breach of this Agreement. In the event of a breach of this section, Customer will pay Caspio, as liquidated damages, an amount equal to thirty-five percent (35%) of the solicited individual’s annualized compensation at the time of solicitation, which the parties acknowledge represents a reasonable estimate of the costs of recruiting, hiring, and training a replacement, and is not intended as a penalty. This remedy is in addition to, and not in lieu of, any equitable relief available to Caspio.

10. INDEMNIFICATION

Customer Indemnification. Customer will indemnify, defend, and hold harmless Caspio and its affiliates, officers, directors, employees, and agents from any third-party claim arising out of or in connection with: (a) Customer’s use of the Consulting Services or Deliverables, including any applications or content Customer creates or deploys; (b) Customer Data processed through the Deliverables; or (c) Customer’s breach of this CSA. This obligation is subject to Caspio providing Customer with prompt written notice, sole control of defense and settlement (provided that any settlement unconditionally releases Caspio and does not adversely affect Caspio’s business or Service), and reasonable assistance.

Caspio Indemnification. Caspio will indemnify, defend, and hold harmless Customer and its affiliates, officers, directors, employees, and agents from any third-party claim alleging that the Deliverables as provided by Caspio directly infringe a copyright, U.S. patent, or trademark. This obligation is subject to Customer providing Caspio with prompt written notice, sole control of defense and settlement (provided that any settlement unconditionally releases Customer), and reasonable assistance.

Caspio will have no indemnification obligation for claims arising from: (a) modifications to the Deliverables made by Customer or any third party; (b) combination of the Deliverables with Customer’s products, services, or business processes; or (c) Customer’s continued use of the Deliverables after Caspio provides a non-infringing alternative.

Infringement Remedies. If a Deliverable becomes the subject of an infringement claim, Caspio may at its option and expense: (a) modify the Deliverable to make it non-infringing; (b) replace it with a functionally equivalent non-infringing alternative; or (c) if neither (a) nor (b) is commercially feasible, terminate the applicable SOW and refund fees paid for the infringing Deliverable.

11. WARRANTIES

Performance. Caspio will perform all Consulting Services in a competent and professional manner using qualified personnel. All Consulting Services will be performed in accordance with the applicable SOW. If Customer notifies Caspio in writing within thirty (30) days of delivery that any Consulting Services materially fail to conform to the specifications expressly documented in the applicable SOW, and provides a detailed written description identifying the specific SOW requirements not met and the specific deficiencies observed with supporting evidence, Caspio will review the claim and, if Caspio confirms the nonconformity, will at its option re-perform the nonconforming services or refund the portion of fees directly attributable to the specific nonconforming services. If the parties disagree on whether a nonconformity exists, the SOW specifications will be the sole basis for determination. This is Customer’s sole remedy for breach of this warranty.

Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, CASPIO PROVIDES ALL CONSULTING SERVICES AND DELIVERABLES ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR NON-INFRINGEMENT. THE FEES SPECIFIED IN THIS CSA REFLECT THESE WARRANTY PROVISIONS.

12. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING LOST DATA, LOST PROFITS, OR BUSINESS INTERRUPTION, ARISING FROM OR RELATED TO THIS CSA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS CSA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER UNDER THE SPECIFIC SOW GIVING RISE TO SUCH LIABILITY. THE PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT.

This section is subject to and does not limit either party’s liability for obligations that cannot be limited under applicable law. For claims not arising from the Consulting Services, the limitation of liability in the Terms of Service will apply.

13. INSURANCE

Caspio will maintain throughout the term of this CSA the following insurance coverage: (a) Commercial general liability insurance with coverage of not less than $2,000,000 per occurrence and $4,000,000 general aggregate; (b) Professional liability / technology errors and omissions insurance with coverage of not less than $5,000,000 per claim and in the aggregate; (c) Workers’ compensation insurance as required by applicable law; and (d) Cyber liability and data breach insurance with limits of not less than $5,000,000 per incident and in the aggregate.

14. GENERAL PROVISIONS

Except as expressly modified by this CSA, the general provisions of the Terms of Service (including notices, governing law, assignment, severability, and waiver) apply to this CSA and all SOWs. This CSA, together with the Terms of Service and any executed SOWs, constitutes the entire agreement between the parties regarding the Consulting Services. Terms on any purchase order or similar document submitted by Customer will have no effect.