Caspio Solutions Package Agreement

This Solutions Package Agreement (“SP Agreement”) is made effective upon mutual signatures or your click through (as the case may be) (the “Effective Date”) by and between (“Customer”) and Caspio, Inc. (“Caspio”).

1. ACCOUNT REQUIREMENTS

To use Caspio’s Solutions Package Service, Customer shall be provided with a free registered account for the Caspio Platform, which is Caspio’s online application development framework and hosting environment, which shall be governed by Caspio’s Platform Terms of Service.

2. SCOPE OF SERVICES

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. Caspio shall develop new applications or enhancements to existing applications as requested by Customer, with duration (1, 2 or 3 years) and pricing set by Caspio and agreed by Customer (each a “Solution Package”). Caspio will evaluate Customer requests on a case by case basis, and may choose not to accept any request in its sole discretion.

Each Solution Package includes the development of the agreed upon work, with pricing based on DataPages (the number of user interfaces). Other background workflows, tasks, data architecture, webhook integration and user authentication models of reasonable scope are built or configured at no extra charge. API integration and any coding work (including UI customization) is priced independent of the user interfaces. The Solution Package also includes (a) deployment of the application on the customer or a Caspio provided site; (b) maintenance to ensure its operation as browser and device technologies change; and (c) minor improvements and enhancements on occasion. Extensive upgrades are not included but, at Caspio’s option, may be (i) separately quoted for the remainder of the original term of the Solution Package; or (ii) incorporated into a re quoted new Solution Package for a new 1, 2 or 3 year term (with credit for any prepaid fees from the old Solution Package).

3. AUTHORIZED POINTS OF CONTACT

Caspio will establish an authentication process for Customer’s authorized point(s) of contact whom Customer designates with authorization to make decisions on behalf of the Customer, and services will only be provided if the point of contact is properly authenticated. Customer will immediately notify Caspio if the primary or secondary point of contact changes.

4. REQUESTING AND DELIVERY OF SERVICES

Customer, through its designated point of contact and via email, phone call or Caspio’s communication portal, may request a Solution Package. Caspio staff will schedule and develop the Solution Package once the project is sufficiently defined/clarified (“Work Scope”).

Once scheduled by Caspio, the Work Scope defined by Customer’s point of contact shall be final and Customer shall be fully responsible for all related fees and charges.

Any timetable for services is dependent on Customer’s timely provision of all necessary information and authorizations. 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.

5. ACCESS AND PRIVACY AND INTELLECTUAL PROPERTIES RIGHTS

In order to provide services, 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, and Caspio applies the same level of protection to your confidential information as it does to its own. Nevertheless, Caspio engages with many customers on many similar types of applications. While we don’t disclose any customer’s ideas and processes with any other customer, many customers independently request similar applications, and Caspio is free to take on all such engagements.

All intellectual property of your account belongs to you. However, all Caspio powered applications require the Platform to operate. All intellectual property rights in the Platform belong to Caspio.

6. FEES AND BILLING

Each Solution Package is priced independently and for an independent term of 1, 2 or 3 years. For all Solution Packages, fifty percent (50%) of the term’s price is due upon commencement of development, with the balance due upon completion. For development of applications of unknown scope, Caspio in its sole discretion may require a deposit and follow-on interim billings until completion. Overage in usage of resources beyond those specified in the original Solution Package (e.g., extra data records, SMS messages, API calls, emails, etc.) shall be billed monthly.

All fees are due regardless of whether an invoice is generated. Caspio will not be obligated to provide services under this SP 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 Platform account will be used as the default form of payment (including for overage fees), unless you pre-pay fees.

Unless specified otherwise by Caspio, pricing and payment is in United States dollars. The amounts payable under this SP 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.

7. DISPUTE RESOLUTION

Upon either party submitting a written notice of dispute, the parties will use their best efforts to resolve such dispute through good faith negotiations, and any such dispute that cannot be resolved within thirty (30) days (or such longer period to which the parties may agree) may be submitted to a court designated in Section 11 below.

8. RELATIONSHIP OF PARTIES, NO SOLICITATION OF EMPLOYEES

The parties are each an independent contractor, and neither party has the right or authority to create or assume any obligation or responsibility on behalf of the other party. During the term of this SP Agreement and for a period of two (2) years thereafter, each party will not solicit for employment or contract any employee of the other party, nor directly or indirectly induce any employee to terminate his or her employment with the other party.

9. SERVICE WARRANTY

Caspio will perform all services in a competent and professional manner, in accordance with the agreed Work Scope documentation.

EXCEPT AS PROVIDED IN THIS SECTION 9, CASPIO PROVIDES ALL SERVICES AND DELIVERABLES ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED OR STATUTORY), INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULT, EFFORT, TITLE OR NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND RESULTS OBTAINED WITH RESPECT TO THE SERVICES AND DELIVERABLES RESTS WITH CUSTOMER. THERE IS NO WARRANTY THAT THE INFORMATION PROVIDED HEREUNDER, CASPIO’S EFFORTS, OR THE SERVICES OR DELIVERABLES WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. THE FEES SPECIFIED IN THIS SP AGREEMENT REFLECT THESE NEGOTIATED WARRANTY PROVISIONS, AND TO THE EXTENT THAT CASPIO CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

10. TERM, RENEWAL AND TERMINATION

The term of this SP Agreement shall match the original term of your Solution Package, commencing on the Effective Date, and will renew automatically for another term of equal length at the end of each term at then current pricing, unless either party provides notice of its intent to terminate this SP Agreement ninety (90) calendar days in advance of the end of any term.

Either party may terminate this SP Agreement for cause upon 30 days’ written notice (“Cure Period”). Should the breach not be cured within that time, this SP Agreement shall terminate 30 additional days after the end of the Cure Period.

The termination of any Solution Package does not automatically affect any other agreement between the parties (including this SP Agreement), and all such other agreements shall continue in full force according to their specific terms.

11. GENERAL

Notices. All notices, consents, demands and approvals under this SP 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.

No Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of Customer’s rights under this SP 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. If any provision of this SP 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 SP Agreement shall not constitute a waiver of any other or subsequent default or breach.

Waiver. All waivers must be in writing. Any waiver or failure to enforce any provision of this SP 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 SP 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 SP Agreement. Any action or proceeding arising from or relating to this SP 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.

Entire Agreement. This SP 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 SP 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.

Counterparts. This SP 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.