Last modified January 9, 2018
This Managed Application Services Agreement (the “MAS Agreement”) is effective as of the date of Your registration into Caspio’s Managed Application Services page (the “Effective Date”), and is by and between you, either as an individual or a legal entity that you represent as an authorized employee or agent (“Customer” or “You”) and Caspio Inc., (“Caspio”) a Corporation registered in the state of Delaware, United States of America. If you are entering into this Agreement on behalf of your company, the terms “You” and “Your” in this Agreement means your company and all of its employees.
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “I ACCEPT” BUTTON OR CHECKING THE ACCEPT CHECKBOX DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.
This Managed Application Services Agreement and the associated services are presented to Customer 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 Professional Services, where applicable.
To use Caspio’s Managed Application Services, Customer must have registered for a Caspio Bridge Platform account, with plans and pricing which is separate from the Customer’s Managed Application Services plan. The Platform plans are governed by their own Terms of Service or agreement.
Caspio will provide the management and upkeep of Customer’s Platform account, its data and its Caspio-powered applications according to the instructions provided to the customer’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 and accepts 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 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. Service will only be provided if the customer can properly get 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.
The tasks assigned to Caspio by your Point of Contact are considered to be final and you will fully accept responsibility for their cost.
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 your Managed Application Services plan’s allocated hours, customer will upgrade to the next plan or pay for overage hours. Apart from work that is relative to an MAS Onboarding plan, a Service Usage report will be sent to Customer and an invoice for the overage hours will be issued based on the usage.
Authorized Contacts. Customer will identify one individual to be Caspio’s primary Customer contact and optionally another individual to be the secondary contact as noted on the Caspio Managed Application Services Registration Page. Customer represents that these people have authorization to make decisions on behalf of the Customer and may be relied upon by Caspio representatives that will be providing the Services. Customer will immediately notify Caspio when the primary or secondary point of contact have changed.
Any timetable for the Services is dependent on timely receipt from Customer all necessary information and authorizations to be supplied by them. In the event of a delay in delivery of any such information or authorization by Customer, any estimated completion date will be deferred according to the future availability of Caspio resources.
Caspio staff, on a need to know basis, may require full access to your Platform account, including all its applications and data in order to provide you with the Service. 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. You will be advised of and approve of, every case where Caspio requires access to your Caspio account.
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.
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. Any unused hours are accumulated for future use, up to a maximum of 3 times your allocated hours as defined in your chosen Managed Application Services plan. 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. The foregoing terms shall not apply to any Managed Application Services Onboarding plan, which shall require that the Customer utilize the allocated hours for the Managed Application Services Onboarding plan within the first full month of sign up, unless otherwise agreed in writing by the parties. For Onboarding plans, hours may not be accrued for use in future periods. If during any month you incur more hours than your allocated hours, including any accumulated hours from previous periods, you will be billed for the extra hours at the hourly overage rate specified in your plan.
For calculating your monthly hour’s 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 whether or not an invoice is generated. Caspio will not be obligated to provide services under this agreement if the account is not paid on time. Caspio shall have the right to apply interest rate of 1.5% per month 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 agreement.
The parties hereto will use their reasonable best efforts to resolve any dispute hereunder through good faith negotiations. A party hereto 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 settlement of the dispute) will be submitted to an arbitrator selected by mutual agreement of the parties. In the event that, within sixty (60) calendar days of the written notice referred to in the preceding sentence, a single arbitrator has not been selected by mutual agreement of the parties, a panel of arbitrators (with each party to the dispute being entitled to select one arbitrator and, if necessary to prevent the possibility of deadlock, one additional arbitrator being selected by such arbitrators selected by the parties to the dispute) shall be selected by the parties. Except as otherwise provided herein or as the parties to the dispute may otherwise agree, such arbitration will be conducted in accordance with the then existing rules of the American Arbitration Association. The decision of the arbitrator or arbitrators, or of a majority thereof, as the case may be, made in writing will be final and binding upon the parties hereto as to the questions submitted, and the parties will abide by and comply with such decision; provided, however, the arbitrator or arbitrators, as the case may be, shall not be empowered to award punitive damages. Unless the decision of the arbitrator or arbitrators, as the case may be, provides for a different allocation of costs and expenses determined by the arbitrators to be equitable under the circumstances, the prevailing party or parties in any arbitration will be entitled to recover all reasonable fees (including but not limited to attorneys’ fees) and expenses incurred by it or them in connection with such arbitration from the non-prevailing party or parties.
Caspio is 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 to this MAS Agreement 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.
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 Development Sprint document, Statement of Work or Customer provided instruction.
Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION 8, 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.
The term of this MAS Agreement is annual, commencing on the Effective Date below. This agreement 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 Agreement ninety (90) calendar days in advance of the end of any term. Managed Application Services Onboarding plans shall not be subject to this annual plan, nor to the 90 day advance termination notice obligation. The term for a Managed Application Services Onboarding plan shall be for thirty (30) days, or until the allocated Managed Application Service hours are consumed by the Customer, whichever comes first. Should the Customer elect to purchase a standard Managed Application Services plan after the expiration or termination of their MAS Onboarding plan, the terms of this MAS Agreement including this Term, Renewal and Termination clause shall apply in full force and effect without the Customer being required to explicitly agree to these terms a second time.
Either party may terminate this Agreement for cause upon 30 calendar day’s prior written notice to the other party. This termination request is conditioned upon the fact that the breaching party must be given written notice of the alleged breach and provided an opportunity to correct the breach within 30 calendar days (“Cure Period”). Should the breach not be cured within that time, this MAS Agreement shall terminate 30 calendar days after the expiration of the Cure Period.
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.
Caspio agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by this MAS Agreement and by law. Without limiting the foregoing, to the extent this MAS Agreement creates exposure generally covered by the following insurance policies, Caspio will maintain at its sole cost and expense at least the following insurance covering its obligations under this agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, )iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrences; (b) Workers Compensation at statutory limits; and (c) Professional Liability Insurance covering errors and omissions and wrongful acts in performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).
All notices, consents demands and approvals for Caspio under this MAS Agreement must be delivered in writing by courier 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 five (5) calendar days after being deposited in the mail as required above, whichever occurs sooner.
2953 Bunker Hill Lane, Suite 201
Santa Clara, CA 95054 USA
Caspio may notify you via postings on www.caspio.com, or via the email address registered under the Admin users’ profile in your Caspio Bridge account.
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. Customer 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, 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 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 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.