Caspio Partner Program Agreement

Definitions

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  For purposes of this definition, “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Beta Services” means Services or functionality that may be made available to Customer or Partner to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

“Content” means information obtained by Caspio from publicly available sources or its third-party content providers and made available to Customer or Partner through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.

“Customer” means an individual or entity (including its Affiliates) that has entered into a Subscription Agreement with Caspio and one or more Order Form(s) to purchase Services.

“Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-Caspio Applications.

“Documentation” means the applicable Service’s Trust and Compliance documentation, and its usage guides and policies, as updated from time to time, accessible via https://howto.caspio.com, https://www.caspio.com, or login to the applicable Service.

“Effective Date” of this Agreement will be the date on which Partner accepts this Agreement as set forth above.

“Non-Caspio Application” means a web-based, mobile, offline, or other software application functionality that is provided by Customer, Partner or a third party and interoperates with a Service, including, for example, an application that is developed by or for Customer or Partner, is listed on an online directory, catalog or marketplace of applications that interoperate with the Services.

“Order Form” means, depending on the context in which it is used herein:
(i) the ordering documents that are entered into between Partner and Caspio from time to time to effect Partner’s payment of Program Fees associated with its participation in the Partner Program or receipt of certain additional Program Benefits, including any addenda to such ordering documents; Order Forms submitted by Partner shall be deemed incorporated herein by reference; or
(ii) ordering documents or online order specifying the Services to be provided to a Customer and associated with a Customer’s purchase of Services from Caspio.

“Participation Qualifications” means the Program Type requirements set forth in the applicable Program Type’s Program Policies.

“Partner” means (i) a company or other legal entity, or (ii) an individual acting on their own behalf, who has agreed to this Agreement.

“Partner Program” means, collectively, the Program Benefits and rights and obligations of Partner and Caspio that are associated with the Program Types described in the Program Policies. Reseller relationships between Caspio and Partners will also be governed by this agreement.

“Partner Services” means the online, web-based applications and platform to facilitate Partner’s partner relationship with Caspio and available via https://www.caspio.com and/or other designated websites, that are provided to Partner in accordance with this Agreement and/or Partner’s participation in a Program Type, including associated offline components, but excluding any Non-Caspio Applications. Partner Services includes, but is not limited to, the Partner Community and Partner training resources.

“Partner Tier” means Partner’s level in certain Program Types. Partner Tiers are described more fully in the Program Policies and are subject to change from time to time.

“Partner User” shall mean an individual who is authorized by Partner to use the Services or Partner Services (including Partner Community) that Caspio makes available to Partner, and to whom Partner (or, when applicable, Caspio at Partner’s request) has supplied a user identification and password (for Services or Partner Services utilizing authentication).  Partner Users may include, for example, employees, consultants, contractors, and agents of Partner, and third parties with which Partner transacts business.

“Program Benefits” means the materials and/or services that may be provided to Partner under this Agreement as part of Partner’s participation in a Program Type. Certain Program Benefits may be subject to payment of additional fees.

“Program Fees” means collectively, any fees that Partner must pay Caspio for participation in a Program Type, or for Program Benefits, as further described in the Program Policies.

“Program Policies” means the terms describing the Partner Program, Program Types, Partner Tiers, Program Benefits, and other policies governing Partner’s participation in the Partner Program, as set forth in this CPPA and the Program Policies.

“Program Type” means a category or sub-category of the Partner Program that has a particular scope and particular set of Program Benefits, as set forth in this CPPA and the Program Policies. Program Types may have multiple Partner Tiers.

“Caspio” means Caspio, Inc. or the Caspio company as set forth in Section 16 (Parties, Legal Notices, Governing Law and Jurisdiction) of this CPPA.

“Services” means the products and services that are ordered by Customer under an Order Form (or otherwise provided to Partner in accordance with this Agreement) and made available online by Caspio, including associated Caspio offline or mobile components, as described in the Documentation. Services exclude Content and Non-Caspio Applications.

“Terms of Service” means terms and conditions located at https://www.caspio.com/caspio-bridge-terms-of-service/, as modified from time to time.

1. Program Overview

   1. Enrollment. To participate in the Partner Program, Partner must be enrolled in a Program Type. To enroll in a Program Type, Partner must fulfill the Participation Qualifications set forth in the applicable Program Type’s Program Policies, and be accepted for the applicable Program Type by Caspio.
   2. Fees.  Participation in the Partner Program, including assignment to certain Partner Types and Partner Tiers or the receipt of certain Program Benefits, may be subject to Program Fees as described in the Program Policies.  Payment obligations are non-cancelable, and fees paid are non-refundable.
   3. Partner Affiliates. Partner Affiliates may hold themselves out as Partners of Caspio solely as expressly permitted pursuant to the Program Policies for such Partner Program, and only for the purposes of such Partner Program, subject to Partner’s obligations with respect to the disclosure of third parties in Section 2.6 (Disclosure of Third Parties).  Unless otherwise agreed by the Parties in writing, Partner is responsible for ensuring any Partner Affiliate holding itself out as a Partner of Caspio complies with the terms of this CPPA and first reviews and signs all the relevant agreements and receives Caspio’s written approval (before holding itself out as a Partner of Caspio).  Participation by Partner Affiliates in this manner may be denied or revoked at any time by Caspio in Caspio’s sole discretion.  Alternatively, each Partner Affiliate that desires to be a member of the Partner Program must separately agree to this Agreement and take such other steps to enroll in the applicable Program Type as are specified in the Program Policies.
   4. Opt-in to Marketing.  Partner’s participation in the Partner Program will serve as an opt-in to receive Caspio’s marketing communications.  Partner will be presumed to have provided appropriate notices and have obtained appropriate consents, if required, from any persons or Partner Users who are signed up to the Partner Program on Partner’s behalf.  Partner may elect to opt-out from receiving Caspio’s marketing materials by contacting Caspio directly, by accessing our unsubscribe page, or by clicking on the “unsubscribe” link located at the bottom of our marketing emails. We reserve the right to send Partner account-related communications, such as service announcements and administrative messages, that are considered part of the Caspio Service, and we do not offer you the option to opt out of these messages.
   5. Partner-Sponsored Co-Marketing Activities and Expenses. Partner may not sponsor and will not be reimbursed for any co-marketing activities or events unless Partner has first accepted the terms of the Caspio Partner Agreements.

2. Compliance

   1. Compliance with Laws.
      1. Compliance with Applicable Laws.  In connection with this Agreement, Partner shall comply, and shall ensure its employees, officers, directors, and any third parties performing activities on Partner’s behalf comply, with all applicable laws and regulations, including, without limitation, trademark and copyright laws and ICANN policies and procedures governing domain names (“Applicable Laws”) and shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to Caspio, Customers, the Services, or to the public. Caspio shall comply with Applicable Laws that are applicable to Caspio generally (i.e., without regard to Partner’s and/or any Customer’s particular use of the Services or Partner Services) in its performance of its obligations hereunder.
      2. Compliance with Anti-Corruption Laws.  Without limiting Section 2.1 above, in connection with the Agreement, Partner, and all employees, officers, and directors, and any third parties working for Partner or performing activities on Partner’s behalf, (1) will comply with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and other applicable anti-corruption laws and regulations (collectively, the “Anti-Corruption Laws”); and (2) shall keep accurate books, accounts, and records.  It is the intent of the Parties that no payments or transfers of anything of value shall be made in connection with this Agreement that have the purpose or effect of public, commercial, or other bribery, or acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any improper advantage.
      3. Consequences of Violation.  Partner hereby acknowledges and agrees, Caspio may terminate or suspend this Agreement immediately by written notice without any liability to Partner: (1) upon any violation by Partner of this Section 2; or (2) circumstances causing Caspio to believe, in good faith, that Partner, or any of its owners, directors, employees, or third parties (including sub-contractors, sub-distributors, integrators, or other third parties), has engaged in illegal conduct or unethical business practices, including any potential violations of the anti-corruption Laws.  Termination or suspension by Caspio under this section shall be in addition to, and not in lieu of, Caspio’s other legal rights and remedies.  If Caspio terminates or suspends the Agreement under this section, Caspio may suspend or withhold any payments to Partner hereunder  Caspio will not be liable for any claims, losses, or damages arising from or related to failure of Partner to comply with the Anti-Corruption Laws or this Agreement or related to the termination or suspension of this Agreement under this clause, and Partner will indemnify and hold Caspio harmless against any such claims, losses, or damages.
   2. Training.  Partner agrees that it has provided or will provide training and information to its officers, directors, employees, and any third parties utilized by Partner in connection with performance of this Agreement as necessary to ensure full compliance with the Anti-Corruption Laws and any other applicable laws and any obligations set forth in this Section 2.
   3. Reporting Potential Violations.  Consulting Partner agrees that it shall promptly inform Caspio’s Legal Department (legal@caspio.com) in writing should it or any of its officers, directors, or employees learn of, or suspect, any act or circumstance that may violate applicable laws in connection with this Agreement.
   4. No Affiliation with Government Officials – Disclosure Obligation.  Partner affirms that (1) none of its owners, directors, employees and, to its knowledge, third parties involved in the performance of this Agreement is a Government Official or a Close Family Member of a Government Official with the ability, or appearance of ability, to influence the performance of this Agreement; or that (2) it has fully described any such relationship in writing to Caspio’s Legal Department (legal@caspio.com) and received acknowledgement by Caspio’s Legal Department of such disclosure.  For purposes of this Agreement (A) “Government Official” means an officer or employee of any government; officer or employee of any public international organization; officer or employee of any department, agency, or instrumentality of any government or of any public international organization; officer or employee of any government-owned or government-controlled company; political party; political party official; or anyone, whether a private person or otherwise, acting in an official capacity on behalf of any of the above or of any government entity and (B) “Close Family Member of a Government Officials” means the Government Official’s spouse, the Government Official’s or the spouse’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, and first cousins; the spouse of any of the above; or any other person who shares the same household with the Government Official.  In the event that during the term of the Agreement there is a change in the information described in this paragraph, Partner shall promptly disclose such change to Caspio’s Legal Department in writing.
   5. Disclosure of Third Parties.  Partner shall not utilize or employ any Affiliate, third-party subcontractor, consultant, agent, or other intermediary in connection with the performance of lead generation and referral activities hereunder or in connection with the resale of Caspio Services to government entities without prior review and approval by Caspio.  To request Caspio’s review and approval, include details of the foregoing in the documentation requested by Caspio at the time of Partner onboarding.  Caspio will have the authority to accept or reject any proposed third party.
   6. Export Compliance.  Caspio and Partner each represents that it is not named on any U.S. government denied-parties list.  Neither party will access or use any Partner Services, Program Benefits or Confidential Information provided to it hereunder in a U.S.-embargoed country or region (currently the Crimea region, Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or governmental regulation.

3. Services, Compliance and Technical Training

   1. Partner’s sales representatives must be reasonably capable of effectively delivering Caspio’s value proposition and must be generally knowledgeable about the Services and their interfaces, advantages, and high-level functionality.  Other requirements regarding Partner Services, compliance and technical training vary by Program Type, and are described in the Program Policies.

4. Intellectual Property Ownership

   1. Technology.  Subject to the limited licenses and rights set forth in this Agreement, nothing in this Agreement transfers or assigns to either Party any of the other Party’s intellectual property or other proprietary rights in the other Party’s technology, products, or services. The intellectual property and other proprietary rights in Caspio’s technology, products, and services, including without limitation the Services and the Partner Services, are defined herein as “Caspio’s Property.”
   2. Caspio Trademarks. Caspio’s marks, including those identified in Caspio’s Partner Branding Guidelines, and otherwise used on Caspio’s websites, are Caspio’s trademarks or service marks and may not be used in any manner except as expressly permitted in this Agreement or the applicable Program Policies, or with Caspio’s prior written consent.  Consistent with Caspio’s trademark rights and usage policies, Partner shall not incorporate “Caspio,” (unless permitted by the Caspio Partner Branding Guidelines) or any other Caspio mark or brand in any trade name, brand name, domain name, or other source identifying term.  Partner shall not bid on or purchase any keyword which is Caspio’s trademark, including without limitation Caspio.com^® or Caspio^® in any keyword advertising service (such as, for example, Google AdWords) except with Caspio’s prior written consent.  Partner may not publish any advertisement that includes any Caspio trademarks without prior review and approval of Partner’s proposed ad and/or related website by Caspio’s legal and Search Engine Marketing teams.  Partner may forward requests for review and approval to partners@caspio.com.
   3. Partner Trademark License. Partner grants Caspio a nonexclusive, nontransferable, non-sublicensable, royalty-free license to use, for the purpose of identifying and promoting Partner’s participation in Caspio’s Partner Programs and in connection with Caspio’s rights, duties and obligations under this Agreement, Partner’s marks including Partner’s company name, and, if applicable, Partner Directory publisher name and any Directory listing names, and any other marks or logos associated therewith or otherwise used by Partner within the Caspio ecosystem (“Partner’s Marks”). Partner may withdraw its approval of any use of the Partner’s Marks at any time in its sole discretion upon written notice to Caspio, which withdrawal shall be effective promptly but in no case more than thirty (30) days from the date of Partner’s notice sent in accordance with Section 16.2 (Manner of Giving Notice) below, provided that no such withdrawal will require the recall of any previously published or distributed materials.
   4. Competitive Applications.  Subject to Caspio’s and Partner’s respective rights and obligations under this Agreement, Caspio acknowledges that Partner and/or other parties may develop and publish applications that are similar to or otherwise compete with the Services or other Caspio applications, products and services, and Partner acknowledges that Caspio and/or other parties may develop and publish applications that are similar to or otherwise compete with Partner’s applications, products, or services.

5. Restrictions

   1. Restrictions on Use of the Partner Services.  Partner is responsible for all activities that occur in Partner User accounts, and for its and Partner Users’ compliance with this Agreement.  In no event shall Partner (i) sell, resell, license, sublicense, distribute, make available, rent or lease or otherwise commercially exploit to any third party (except as expressly provided in this CPPA) the Partner Services in any way; (ii) use the Partner Services or a Non-Caspio Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iii) use the Partner Services or a Non-Caspio Application to send or store any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (iv) modify or make derivative works based upon the Partner Services; (v) create Internet “links” to the Services or Partner Services, or “frame” or “mirror” them; (vi) permit direct or indirect access to or use of any Services or Partner Services in a way that circumvents a contractual usage limit, or use any of the Partner Services to access or use any of our intellectual property except as permitted under this Agreement; (vii) interfere with or disrupt the integrity of performance of the Partner Services or the data contained therein; (viii) access Partner Services in order to build a competitive product or service or to benchmark with a non-Caspio product or service or (ix) reverse engineer the Partner Services; (x) share data or content from the Partner Services with Caspio competitors; (xi) attempt to gain unauthorized access to any Partner Services or Content or related systems or networks; (xii) copy Partner Services or any part, feature, function or user interface thereof or (xiii) recruit or market directly to other Partner users using data, content or contact information obtained through the Partner Community.  Partner User subscriptions cannot be shared or used by more than one individual user but may be reassigned from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function and no longer need to use the Partner Services under this Agreement.  Partner’s or a Partner User’s intentional violation of the foregoing, or any use of the Partner Services in breach of this Agreement by Partner or Partner’s Users that in Caspio’s judgment imminently threatens the security, integrity, or availability of Caspio’s services, may result in Caspio’s immediate suspension of the Partner Services.  Caspio will use commercially reasonable efforts under the circumstances to provide Partner with an opportunity to remedy such violation or threat prior to any such suspension.
   2. Restrictions on use of the Services.  Partner acknowledges and agrees that Partner’s use of any Services provided to Partner in connection with Partner’s activities hereunder is governed by the terms of Caspio’s Terms of Service Agreement.
   3. Additional Restrictions.  Without affecting any other restrictions set forth in the MSA and this CPPA, Partner’s use of any Program Benefits, including Caspio’s Property provided to Partner hereunder, is subject to additional restrictions. Specifically, Partner may not:
      • Remove or modify any notice of Caspio’s or Caspio’s licensors’ proprietary rights;
      • Make the Services, any materials delivered hereunder, or any materials resulting from the Services available in any manner to any third party for use in the third party’s business operations, other than as expressly permitted herein or in the Program Policies for Partner’s assigned Program Type;
      • Use Caspio’s Property in a manner that misrepresents Partner’s relationship with Caspio or is otherwise misleading or that reflects negatively on Caspio or may harm Caspio’s rights therein;
      • Modify in any way any of Caspio’s trademarks and/or associated logos (e.g., by inserting Partner’s company or brand name inside Caspio’s proprietary logo OR by co-branding products or services by blending Caspio’s corporate logo with Partner’s corporate logo without Caspio’s permission);
      • Use or duplicate Caspio’s Property provided to Partner for any purpose other than as specified in this Agreement or make Caspio’s Property available to unauthorized third parties;
      • Use Caspio’s Property for Partner’s own internal business operations, or use or make Caspio’s Property available in any manner to any third party for use in the third party’s business operations or for any other commercial or production use, other than as expressly permitted in this Agreement applicable to Partner’s assigned Program Type and/or Partner Tier; or
      • Use the Services, Partner Community, Partner Directory or Caspio Property in violation of Caspio’s Terms of Use Agreement and Privacy Statement as may be updated from time to time.

6. Warranties; Disclaimers and Remedies

   EXCEPT AS EXPRESSLY SET FORTH HEREIN, CASPIO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE SERVICES, THE PARTNER PROGRAM (INCLUDING WITHOUT LIMITATION THE PARTNER SERVICES, PARTNER COMMUNITY, PARTNER DIRECTORY AND PROGRAM BENEFITS), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW INCLUDING WITH RESPECT TO THE PERFORMANCE, FUNCTIONALITY, QUALITY, BENEFITS OR AVAILABILITY OF ALL OF THE FOREGOING. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. IN NO EVENT WILL CASPIO BE LIABLE TO PARTNER (OR TO ANY INDIVIDUAL OR ENTITY AFFILIATED WITH PARTNER) FOR ANY CLAIM, LOSS OR DAMAGE ARISING OUT OF THE OPERATION OR AVAILABILITY OF THE SERVICES, THE PARTNER SERVICES OR ANY OTHER CASPIO PRODUCT OR SERVICE, MADE AVAILABLE, ACCESSED OR USED AS PART OF PARTNER’S PARTICIPATION IN THE PARTNER PROGRAM.

7. Relationship of the Parties

   This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between Partner and Caspio, notwithstanding the use of the term “partner” in this Agreement. Neither Party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other Party, nor to represent the other Party as agent, employee, franchisee, or in any other capacity. There are no third-party beneficiaries to this CPPA. Partner shall not make any proposals, promises, warranties, guarantees, or representations on Caspio’s behalf or in Caspio’s name.

8. Services Feedback

   Partner grants Caspio a worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable, license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Partner relating to the operation of Caspio’s or its Affiliate’s services.

9. Term, Termination & Renewal

   1. Term.  This Agreement starts on the Effective Date and shall remain in effect unless terminated as set forth herein, provided that if Partner joins a Partner Program(s) and its participation in all such Partner Programs terminates, this Agreement shall automatically terminate as of the end date of its participation in the last Partner Program.
   2. Termination for Cause. Either Party may immediately terminate this CPPA upon written notice to the other Party if (i) the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (ii) the other Party publicly announces (including by reporting it in SEC filings) that it has reached agreement to acquire or be acquired by the terminating Party’s competitor, (iii) the other Party breaches its confidentiality obligations under this CPPA or infringes or misappropriates the terminating Party’s intellectual property rights, (iv) it determines, based on one or more Customer or prospective Customer complaints, that the other Party’s actions or statements creates a significant risk of harm to the terminating Party’s reputation or customer relationships, (v) the other Party has committed fraud or misrepresentation with respect to entering into and/or the performance of this Agreement, (vi) a Party learns of circumstances that give it reason to believe that the other Party has engaged in illegal conduct or unethical business practices in connection with performance of this Agreement, (vii) the other Party, or any of its owners or employees responsible for providing services under this Agreement have become the target of an investigation or prosecution by any governmental authority for alleged corruption or other violation of laws, or (viii) the other Party has violated Section 2 (Compliance with Applicable Laws) above including, in the case of Caspio, Partner’s violating Caspio’s rights under trademark and copyright laws and/or ICANN policies and procedures governing domain names.  Subject to the foregoing, either Party may terminate this CPPA upon thirty (30) days’ written notice to the other Party of such other Party’s material breach if the breach is not cured during that period.  Caspio may suspend Partner’s assigned Program Type Program Benefits during any period in which Partner is in breach of this Agreement, including its payment obligations.  Termination of this CPPA for cause shall be in addition to, and not in lieu of either Party’s other legal rights or remedies.
   3. Termination for Convenience.  Subject to Section 9.4 (Effect of Termination) below, either Party may terminate this CPPA for convenience upon thirty (30) days’ written notice to the other Party.
   4. Effect of Termination. Upon termination or expiration of this CPPA, Partner shall cease to be a participant in the Partner Program and all of Partner’s rights to receive the Program Benefits detailed in this Agreement, and to use Caspio’s Property shall cease.  If Caspio terminates for convenience under Section 9.3 (Termination for Convenience) or Partner terminates for cause under Section 9.2 (Termination for Cause), Caspio will refund the pro-rated portion of any pre-paid Program Fees covering the period following such termination.  Provisions that survive termination or expiration include those relating to limitation of liability, payment, and others which by their nature are intended to survive. For clarity, expiration or termination of this CPPA will not relieve Partner of its obligation to pay the portion of the Program Fees associated with its participation in the Partner Program leading up to the effective date of the expiration or termination.

10. Confidentiality

    1. Definition of Confidential Information.  As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Caspio’s Confidential Information includes, but is not limited to Caspio’s and third party applications; any non-public information Partner has access to through the Partner Community; the Services; Customer Data to which Partner has access through Caspio’s systems by virtue of participating in the Partner Program; and the terms and conditions of this Agreement.  Partner’s Confidential Information includes, but is not limited to Partner Applications and Partner’s business and marketing plans, technology, and technical information; products designs; and business processes.  Confidential Information of each Party includes the discussions regarding the partner relationship.  However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without breach of any obligations owed to the Disclosing Party.  Notwithstanding the foregoing, the protections set forth in this Agreement for Customer Data remain in full force and effect even where such Customer Data meets the criteria in (i) – (iv) above.
    2. Protection of Confidential Information.  The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.  Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with this “Confidentiality” section.
    3. Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

11. LIMITATION OF LIABILITY

    1. Limitation of Liability. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF CASPIO TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE PROGRAM FEES PAID BY PARTNER IN THE 12 MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.  NOTWITHSTANDING THE FOREGOING, THE ABOVE LIMITATIONS ON LIABILITY SHALL NOT APPLY TO CASPIO’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12.2 (INDEMNIFICATION BY CASPIO) BELOW.
    2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL CASPIO OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF CASPIO OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF CASPIO OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

12. INDEMNIFICATION

    1. Indemnification by Partner.  Partner will defend Caspio against any claim, demand, suit or proceeding made or brought against Caspio by a third party (i) alleging that Partner’s products or services, or any data that Partner enters into the Services or the Partner Community, infringe the intellectual property rights of, or have otherwise harmed, such third party; (ii) based upon a representation made by Partner to such third party; or (iii) based upon a Partner’s breach of this Agreement (each a “Claim Against Caspio”), and will indemnify Caspio from any damages, attorney fees and costs finally awarded against Caspio as a result of, or for any amounts paid by Caspio under a settlement approved by Partner in writing of, a Claim Against Caspio, provided Caspio (a) promptly gives Partner written notice of the Claim Against Caspio, (b) gives Partner sole control of the defense and settlement of the Claim Against Caspio (except that Partner may not settle any Claim Against Caspio unless it unconditionally releases Caspio of all liability), and (c) gives Partner all reasonable assistance, at Partner’s expense.
    2. Indemnification by Caspio. Caspio will defend Partner against any claim, demand, suit or proceeding made or brought against Partner by a third party alleging that the Services, or the Partner Community, infringes or misappropriates the intellectual property rights of such third party (a “Claim Against Partner”), and will indemnify Partner from any damages, attorney fees and costs finally awarded against Partner as a result of, or for amounts paid by Partner under a settlement approved by Caspio in writing of, a Claim Against Partner, provided Partner (a) promptly gives Caspio written notice of the Claim Against Partner, (b) gives Caspio sole control of the defense and settlement of the Claim Against Partner (except that Caspio may not settle any Claim Against Partner unless it unconditionally releases Partner of all liability), and (c) gives Caspio all reasonable assistance, at Caspio’s expense. If Caspio receives information about an infringement or misappropriation claim related to the Services or Partner Community Caspio may in its discretion and at no cost to Partner (i) modify the Services or Partner Community so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Partner’s or Customer’s (as applicable) continued use of that Service in accordance with this Agreement; or (iii) terminate any of Partner’s or Customer’s (as applicable) rights for that Service upon thirty (30) days’ written notice and refund Partner or Customer (as applicable) any prepaid fees covering the remainder of the term of the terminated Services. The above defense and indemnification obligations do not apply to the extent a Claim Against Partner arises from (i) Content, a Non-Caspio Application or Partner’s breach of this Agreement, the Documentation or applicable Order Forms; or (ii) the use or combination of the Services, the Partner Community, or any part thereof with software, hardware, data, or processes not provided by Caspio, if the Services or Partner Community, or use thereof, would not infringe without such combination.
    3. Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

13. Cooperation on Disputes

    Partner shall reasonably cooperate with Caspio in regard to any inquiry, dispute, or controversy in which Caspio may become involved and of which Partner may have knowledge, including with respect to disclosure of relevant documents and financial information, and interviews of Partner’s personnel. Such obligation shall continue after the expiration or termination of this Agreement.

14. Entire Agreement

    Partner agrees that this CPPA and the information which is incorporated into this CPPA by written reference (including reference to information contained in a URL and/or referenced policies and/or guides), or any applicable Order Form for Program Fees or the purchase of certain Program Benefits, or addendum attached hereto, constitutes the complete agreement between the Parties relating to Partner’s participation in the Partner Program. This Agreement supersedes and replaces any prior representations, written or oral, regarding Partner’s participation in the Partner Program as well as any other online or click-through agreement that Partner may have previously entered into with Caspio governing Partner’s participation in the Partner Program before the CPPA version date provided above. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. To the extent of any conflict or inconsistency between the provisions in the body of this CPPA and any addendum or exhibit hereto, the terms of such addendum or exhibit shall prevail. To the extent of any conflict or inconsistency between the provisions in the body of this CPPA and any Order Form, the terms of the Order Form shall prevail. The Parties agree that any term or condition stated in a Partner purchase order or in any other Partner order documentation (excluding Order Forms) is void. This CPPA and any Order Form that Caspio and Partner enter into may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, provided however, that Caspio may modify or amend the Program Policies from time to time as permitted therein.

15. Assignment

    Neither Partner nor Caspio may assign any rights or obligations under this Agreement without the prior written consent of the other (not to be unreasonably withheld or delayed), provided either Party may assign this Agreement without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of the assigning Party’s assets not involving a direct competitor of the other Party.

16. Parties, Legal Notices, Governing Law and Jurisdiction

    1. General. The Caspio entity that Partner is contracting with under this Agreement, the address to which Partner should direct legal notices arising under or relating to this Agreement, the law that will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where Partner is domiciled as follows:

       If Partner is domiciled in:	The Caspio entity entering into this Agreement is:	Legal Notices should be addressed to:	Governing law is:	Courts with exclusive jurisdiction are:
       Worldwide	Caspio, Inc., a Delaware corporation	Caspio Inc, Attn: General Counsel, 1286 Kifer Rd, Ste 107 Sunnyvale, CA 94086, USA legal@caspio.com	California and controlling United States federal law	Sunnyvale, California, USA

    2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (iii) except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email.  Any Legal Notices provided without compliance with this section shall have no legal effect. Notices to Partner shall be addressed to the contact designated by Partner for Partner’s relevant partner account, and in the case of billing-related notices, to the relevant billing contact designated by Partner.  Notices to Caspio that are not Legal Notices shall be addressed to partners@caspio.com and to the attention of the Partner Program Manager.
    3. Governing Law and Jurisdiction.  Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

17. Resale Rights and Obligations

    1. Authorization to Resell. Caspio hereby grants to Reseller the nonexclusive, nontransferable, non-sublicensable right to resell the Service to Customers. Reseller shall resell the Service solely in accordance with the specifications which have been mutually agreed upon by the parties, as set forth in this agreement. Caspio reserves the right to offer the Service directly and indirectly anywhere in the world and through other Resellers.
    2. Usage Rules. Reseller ensures that all its Trial users and Customers understand that they are bound by Caspio Bridge Terms of Service and Privacy Policies. Reseller warrants that Reseller is familiar with these policies and that they are enforceable in Reseller’s jurisdiction. Further, Reseller agrees to present these terms as is, and will not offer to negotiate, modify or add any terms to these Terms of Service without Caspio’s prior written approval.
    3. Sales. Each new account must be in the name of the actual customer served. The actual customer served directly by Caspio is named in the account and is responsible for payments unless otherwise agreed in writing between Reseller and Caspio. Caspio considers the Customer, and not the Reseller, as the owner of the account and its content.
    4. Invoicing and Payment. In cases where Reseller owns the billing relationship with Customer, Reseller bears the full risk of customer nonpayment and shall not be relieved of its obligation to pay fees owed to Caspio in the event of any such nonpayment.
    5. Suspension of Service. If a Customer’s account is 30 days or more overdue or if a Customer breaches Caspio’s Terms of Service, in addition to any of its other rights or remedies, Caspio may suspend the Service and Support or Reseller may request that Caspio suspend the Service and Support provided to the applicable Customer, without liability assumed by Caspio, until such amounts are paid in full or the Customer has resumed full compliance with Caspio’s Terms of Service.
    6. Reseller Commissions. Reseller will earn the commissions on properly registered and resold deals according to its Partner tier as listed in the Solutions Partner Program Policies. Reseller is responsible for paying all direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, or use taxes associated with its orders or sales pursuant to this Agreement, excluding taxes based on Caspio’s net income or property.