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Last modified: August 30, 2022
This Managed Application Services Agreement (the “MAS Agreement”) is made effective as of the date of Caspio’s signature below (the “Effective Date”) by and between (“Customer” or “You”) and Caspio Inc. (“Caspio”).
The delivery of this MAS Agreement and the associated services are conditioned upon Customer’s prior acceptance of the terms and conditions of a Caspio Service Agreement or the Caspio Bridge Terms of Service.
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Caspio agree as follows:
Platform – Caspio’s online application development framework and hosting environment, known as Caspio Bridge.
Terms of Service – The agreement that governs the use of the Platform account.
Statement of Work – An agreement that governs Caspio’s delivery of Professional Services, where applicable.
To use Caspio’s Managed Application Service, Customer must already have a registered Caspio Bridge Platform account, which account has separate plans (with separate terms) and pricing.
Caspio will provide the management and upkeep of Customer’s Platform account, its data, and its Caspio-powered applications, all according to the instructions provided by the Customer to Caspio’s point of contact. As part of this service, Customer can also request development of new applications or enhancements to existing applications. Caspio evaluates such requests on a case by case basis in its sole discretion, and will only accept those that are a good match for the capabilities of the Caspio Platform.
Caspio will designate a single point of contact for most day to day needs of the Customer under this MAS Agreement. From time to time, tasks requiring specialized skills or full development cycles may require a different point of contact from Caspio.
Caspio will establish an authentication process for customer points of contact, and Service will only be provided if the customer is properly authenticated.
Customer, through its designated point of contact and via email, phone call or Caspio’s communication portal, will request their required services. The Caspio staff will schedule the task or project once the requested services are adequately defined and clarified.
Once scheduled by Caspio, the tasks assigned to Caspio by Customer’s point of contact are considered final and Customer fully accepts responsibility for all related fees and charges.
If the service request is an application development project with a development schedule and/or scope beyond the scale covered in the Customer’s Managed Application Services plan, Caspio will work with the Customer to scope and develop the project in iterations (development “Sprints”). If project hours exceed the Managed Application Services plan’s allocated hours, Customer will upgrade to the next plan or pay for overage hours. A Service Usage report will be sent to Customer and an invoice for the overage hours will be issued based on the usage.
In order to provide the Service, Caspio staff require full access to Your Platform account, including all applications and data. The confidentiality of your data, applications and business processes and ideas is important to us. Caspio applies the same level of confidentiality and privacy to your confidential information as it does to its own.
All intellectual property of your account belongs to you. However, all Caspio powered-applications require the Caspio Platform to operate. Our application development services are for building applications on the Caspio Platform.
All intellectual property rights in the Caspio Platform belong to Caspio. Caspio engages with many customers and works on many similar types of applications. While we don’t disclose any customer’s ideas and processes with any other customer, you acknowledge and understand that many customers independently request similar applications, and that Caspio is free to take on all such engagements.
Your Caspio Applications Managed Services plan includes a specific number of service hours per month. These hours shall be utilized by Caspio’s staff in 15-minute increments. Only hours actually accrued through to the current month can be used, irrespective of the prepayment of the Managed Application Services plan. Any unused hours are accumulated for future use. Although the Customer may accrue the unused hours for future use, Caspio shall not be obligated to deliver the sum total of the accrued hours in any one month, above and beyond the contracted services hours in the customer’s plan. Caspio shall collaborate with the Customer to utilize any backlogged accrued hours as quickly as possible, based upon Caspio’s resource availability, and at Caspio’s sole discretion. If during any month You incur more hours than your allocated and/or accrued hours, You will be billed for the extra hours at the hourly overage rate specified in Your plan.
For calculating your monthly hourly usage, Developer, Expert Sessions, Support Engineer and Project Management hours are calculated on a straight time basis. Quality Assurance and Administrative support hours are converted at a half hour of Developer time for every hour utilized from these roles. Architect and Backend Development hours, are converted at two hours of Developer time for every hour of these roles utilized in your Managed Application Services account.
Caspio guarantees the availability of the hours allocated in your plan for Developers and Project Managers during the month. The availability of extra hours beyond the hours allocated in Your plan is not guaranteed, and will be scheduled and provided at Caspio’s sole discretion.
Your monthly fee is due on the first of every month regardless of whether an invoice is generated. Caspio will not be obligated to provide services under this MAS Agreement if the account is past due. Interest at the rate of 1.5% per month shall accrue on any overdue balance. The credit card registered in Your Caspio Bridge account will be used as the default form of payment, unless You pre-pay Your fees annually. Overage hours used may be billed at any time during the month when the total accrued overage fees reach or exceed $1000. Should this threshold not be met during the month, the balance of overage hours shall be billed at the end of the service month.
All pricing of Services are in United States dollars regardless of the currency of Your Platform account.
The amounts payable to Caspio under this MAS Agreement do not include any taxes, levies, or similar governmental charges, however designated, including any related penalties and interest. Customer will pay for (or reimburse Caspio for the payment of) the foregoing, except taxes on Caspio’s net income.
Customer acknowledges that its failure to pay timely any of the fees payable hereunder, or any portion thereof, will be a material breach of this MAS Agreement for which Caspio may, in addition to pursuing all other remedies, withhold Services and/or terminate this MAS Agreement.
The parties will use their reasonable best efforts to resolve any dispute through good faith negotiations. A party must submit a written notice to any other party to whom such dispute pertains, and any such dispute that cannot be resolved within thirty (30) calendar days of receipt of such notice (or such other period or extension to which the parties may agree to continue to explore a negotiated resolution of the dispute) may be submitted to a court designated in Section 13 below.
The parties are each an independent contractor. Neither party has the right or authority to assume or to create any obligation or responsibility on behalf of the other party. This MAS Agreement shall not be construed to create a joint venture or partnership between the parties. During the term of this MAS Agreement and for a period of two (2) years thereafter, each party will not, without the prior written approval of the other party, solicit for employment or contract any employee(s) of the other party or directly or indirectly induce such employee to terminate his or her employment with the other party.
Caspio will perform all Services in a competent and professional manner, with each staff member having the proper skill, training and background to perform his or her assigned tasks. All Services will be performed in accordance with the applicable Development Sprint document, Statement of Work or Customer provided instruction.
EXCEPT AS PROVIDED IN THIS SECTION 11, 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 MAS 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.
The term of this MAS Agreement is annual, commencing on the Effective Date, and will renew automatically for another term of equal length at the end of each term, unless either party provides notice of its intent to terminate this MAS Agreement ninety (90) calendar days in advance of the end of any term.
Either party may terminate this MAS Agreement for cause upon 30 calendar day’s prior written notice to the other party (“Cure Period”). Should the breach not be cured within that time, this MAS Agreement shall terminate 30 additional calendar days after the expiration of the Cure Period.
Customer acknowledges that if this MAS Agreement terminates under any circumstance, all unused MAS hours as of the termination date shall be forfeited.
The termination of this MAS Agreement does not automatically affect any other agreement between the parties, and all such other agreements shall continue in full force until terminated in accordance with that agreement’s specific terms.
All notices, consents, demands and approvals under this MAS Agreement must be delivered in writing by courier or by certified or registered mail (postage prepaid and return receipt requested) at the address provided below and will be effective upon receipt or five (5) calendar days after being deposited in the mail as required, whichever occurs sooner.
Caspio, Inc. Legal Department 1286 Kifer Road, Suite 107 Sunnyvale, CA 94086 USA
Export Control. Customer will comply with all applicable export and import control laws and regulations of the United States and any foreign jurisdiction in which the Services or Deliverables are used and, in particular, Customer will not export or re-export any Deliverables without all required United States and foreign government licenses. Customer acknowledges 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. Customer will defend, indemnify and hold harmless Caspio from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of Customer’s rights under this MAS Agreement to any third party without Caspio’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.
Severability and Waiver. If any provision of this MAS 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 MAS Agreement shall not constitute a waiver of any other or subsequent default or breach.
No Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this MAS 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 MAS 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 MAS Agreement. Any action or proceeding arising from or relating to this MAS 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 MAS Agreement will be written and construed in the English language.
Entire Agreement. This MAS 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 MAS Agreement may be amended only by a written document signed by both parties. The terms on any purchase order or similar document submitted by Customer to Caspio will have no effect.
This MAS Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one and the same agreement.