Caspio Platform Terms of Service Agreement

These Platform Terms of Service and related attachments (“Agreement”) are the terms and conditions for use of Caspio hosted software products and services, downloadable components, and documentation (collectively “Service”, “Services” or “Caspio Services”), and are effective as of the date of Caspio’s signature below or Caspio’s other acceptance (e.g., allowing click-through) (“Effective Date”).

Upon mutual signatures or your click-through (as the case may be), this Agreement exists between you/your organization and all of its employees and agents (“Customer” or “you”) and Caspio Inc. (“Caspio”, “we”, “us” or “our”), a Delaware corporation with headquarters located at 1286 Kifer Road, Suite 107, Sunnyvale, CA 94086 USA.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY (i) CLICKING THROUGH INDICATING YOUR ACCEPTANCE; OR (ii) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR (iii) DIGITALLY OR MANUALLY SIGNING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT SO AGREE, YOU MAY NOT USE THE SERVICE.

In addition to these main Terms of Service, you acknowledge the applicability of the following agreements:

Privacy Statement;
Data Processing Agreement;
Service Level Agreement, if applicable to your level of service;
Consulting Services Agreement, if applicable to your Order Form;
Managed Application Services Agreement, if applicable to your Order Form; and
Business Associate Agreement (offline), if you are a Covered Entity under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).

1. TERM, RENEWAL AND TERMINATION

The term of this Agreement is as set forth in your Order Form. In the absence of an Order Form, this Agreement term is one year or, if a multi-year payment schedule is selected, the term equals the length of the payment cycle (provided, however, that the Starter Plan includes an option for month-to-month access). You will be liable for all the fees of your account according to the terms hereof. This Agreement renews automatically for another term of equal length at the end of each term, unless it is previously terminated by either party or a different plan and/or term is selected to take effect on the next renewal date. Terminations and downgrades require written notice at least thirty (30) days prior to the renewal date. Cancellations or downgrades that are requested in the middle of a term will be effective on the next renewal date; otherwise full payment for the remainder of the term will be due immediately.

Compliance and HIPAA Platform Accounts incur a termination fee when closed for any reason. This mandatory termination fee allows Caspio to maintain transaction logs of the account for the required period of six (6) years for HIPAA and three (3) years for Compliance Accounts. The termination fee for HIPAA Accounts is equal to two (2) months of the Account’s highest monthly fee in the prior six (6) years and for Compliance it is equal to one (1) month of the highest monthly fee in the prior three (3) years.

Either party may terminate this Agreement upon thirty (30) days’ written notice in the event of a material breach that is not cured within thirty (30) days after notice.

Upon the expiration or termination of this Agreement, you will cease to use the Service and remove all references to Caspio from your websites.

2. LICENSE

For the term of this Agreement, Caspio grants to you a limited, non-transferable, non-exclusive right to access and use its proprietary, commercially available Service for your internal business use. The Service is made available to you and your users solely as a hosted service over the Internet, and nothing in this Agreement obligates Caspio to deliver or make available any copies of computer programs or code to you. You may not rent, lease, distribute, or resell the Service, or use the Service as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any logos, branding, trademark, patent or copyright notices, confidentiality or proprietary legends, or other notices or markings that are on or in the Service.

If you are using a Free plan you (i) shall not hide or otherwise tamper with Caspio branding on your applications; (ii) shall maintain accurate contact information; and (iii) shall not sign up for more than one free account. At any time Caspio may, in its sole discretion, immediately terminate your Service if any of these requirements are not met, or change or discontinue the Free plan entirely.

Caspio may make available (i.e., through a Marketplace or otherwise) third party products, plug-ins, connectors or services and implementation and other consulting services (“Non-Caspio Applications”). Any use by you of any Non-Caspio Applications, and any exchange of data between you and any Non-Caspio provider, is solely between you and the applicable Non-Caspio provider, and Caspio does not warrant or support any such activity, including whether designated by Caspio as “Certified” or otherwise (specifically, Caspio is not responsible for any disclosure, modification or deletion of Customer Data arising from any Non-Caspio Applications or providers). The Services may contain features designed to interoperate with Non-Caspio Applications; however, Caspio does not guarantee the continued availability of such Service features, and may cease providing them at any time for any reason without Customer refund, credit, or other recourse.

The Service may include AI Tools. “AI Tools” means the artificial intelligence and machine learning tools provided by Caspio. You may elect whether or not to use AI Tools as part of the Service. If you do so elect, Caspio hereby grants you a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to use the AI Tools during the term and solely for the intended purpose as set forth herein. The use of the AI Tools is subject to your compliance with any and all applicable laws and this Agreement. While Caspio employs appropriate technical and organizational measures to ensure the security and confidentiality of data processed through the AI Tools, you assume full responsibility for the use of the AI Tools. You also agree to indemnify and hold Caspio harmless against any claims, damages, losses, liabilities, costs, and expenses arising from your use of the AI Tools.

Finally, Non-Caspio providers and Non-Caspio Applications may use artificial intelligence and machine learning tools (“AI”) and personal data that may be associated or included therewith. If you choose to access any Non-Caspio Applications, Caspio is not responsible for the manner in which the AI is deployed or any use of personal data incorporated in the AI through Non-Caspio providers. You must consult the terms of use and privacy policies of those Non-Caspio providers and any Non-Caspio Applications for their policies on the use of AI.

3. YOUR DATA PROTECTION RESPONSIBILITIES

You understand that Caspio offers a platform for creating applications. The platform provides many security features, which vary by edition. Nevertheless, it is your responsibility to build applications in accordance with security best practices and applicable data protection laws, including laws related to the use of AI and AI governance. You expressly acknowledge that your users have the capability to download data, create API tunnels, as well as authorize third-party services to view or manipulate the data and files stored in your account. You are also able to build applications that allow public or authorized users to view or download data. It is your responsibility to ensure that your account users are properly trained in the use of these features and follow all applicable data protection laws, data management security best practices, and your company’s policies. You hereby acknowledge that you and your personnel could intentionally or inadvertently expose your data to unauthorized users if proper practices and procedures for building secure applications are not followed. Further, you alone shall be responsible and liable for any unauthorized or unintentional data disclosure that may occur from the acts, omissions, or negligence of you, your personnel or the end user.

4. USAGE RULES/RESTRICTIONS

The Service is offered to you to help you with the operation of your business. You may not access the Service if you are a competitor of Caspio, or for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You may not, without Caspio’s prior written consent, allow any employee or consultant to perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan.

You shall not to use the Service to (i) conduct any business that is unlawful; (ii) infringe or otherwise violate a third party’s rights; (iii) collect information about third parties without their express consent; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vi) send or store infringing, obscene, pornographic, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (vii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (viii) facilitate online real money gambling, real money games of skill, or real money lotteries, including online real money casino, sports books, bingo, or poker, that in any way involve the collection and/or disbursement of gambling funds by or through Caspio’s platform; (ix) facilitate or support any pyramid or Ponzi schemes, matrix programs, or other “get rich quick” scheme; (x) facilitate or participate in any phishing scheme; (xi) attempt to gain unauthorized access to the Service or its related systems or networks; or (xi) falsify the origin of an email by forging the sender address or email header.

Caspio reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, from the Service, at Caspio’s sole discretion, without any notice.

5. SUSPENSION DUE TO HARM

Caspio may suspend your account if it reasonably concludes that the activity of your account is unlawful, or causes harm to Caspio and/or others. If we suspend your access to the Service, we will use commercially reasonable efforts to notify you and to resolve the issues causing the suspension. Caspio shall not be liable to you or to any third party for any suspension under such circumstances. It is your responsibility to ensure that the contact information in your account is accurate for reaching you or your representative.

6. FEES

Fees and any other charges for the use of the Service and for any add-ons and overages are described on the Order Form or Caspio website. These may include “soft” caps for which temporary overage fees apply for excess use, or “hard” caps that automatically transfer you to the next plan tier once the cap is exceeded. Fees may change from time to time, and if we change them we will give you at least 30 days’ notice; your continued use of the Service after the effective date indicates your agreement with the new fees and charges. Any change to fees and other charges will not be applicable to the Term in which the change is made.

7. LATE PAYMENT

All Service fees are billed in advance according to your chosen billing cycle. Overage fees are billed monthly arrears. All Fees shall be paid in United States dollars unless otherwise agreed to. If undisputed amounts are not paid within thirty (30) days your account is automatically suspended. Suspended accounts including their data and applications are automatically deleted thirty (30) days after suspension. Reactivation of a suspended account requires the payment of all past due invoices and the reactivation fee.

You must notify Caspio within fifteen (15) days of the end of a billing cycle regarding any amount in dispute and must include reasonable detail regarding such dispute.

8. OWNERSHIP OF INTELLECTUAL PROPERTY

You retain all rights, title and interest to all the data that you, your employees or your app end users upload or submit to your account in the course of using the Service “Customer Data”. You, not Caspio, shall have sole responsibility for the accuracy, quality, integrity, legality, deletion, correction, reliability, appropriateness, and intellectual property ownership or right to use the uploaded, submitted or exported Customer Data, and Caspio shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or any use or export of such Customer Data from your Caspio account. Caspio reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including non-payment or unlawful use of the Services, however this right shall not infringe upon a data subject’s right under any applicable data protection laws. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Caspio shall have no obligation to maintain or forward any Customer Data.

Caspio shall own all rights, title and interest in and to all intellectual property rights in the Service and software, and transactional and performance data. The license granted to you does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by Caspio.

9. FAIR USE

Many Caspio plans do not impose fixed limits on the usage of certain resources (e.g. data transfer, triggered actions, API profiles). Our intention is to provide simple pricing plans that allow customers to enjoy our services with as much freedom and little concern as possible.

These plans are suitable for 99% of our customers. The usage of about 1% of our customers fall outside what we consider “Fair Use” and they will be contacted by our staff to consider a more appropriate plan. Many factors determine Fair Use for any given account, such as the overall size of the account, length of the relationship, level of commitment, industry, geographic region, and customer engagement factors. As an example, a media customer on a small plan that publishes a single DataPage with very high usage will be contacted to convert to a custom plan designed for high-usage patterns.

10. UPGRADES AND UPDATES

Caspio reserves the right to enhance, upgrade, or modify the Service with or without notice to you. At Caspio’s sole discretion some upgrade and updates may be made available to you free of charge and some other features and functionalities may require additional fees if you choose to use them. There may be times when Caspio needs to remove or modify existing features or functionality of the Service or stop providing a Service. Caspio may release the Services or their features in a preview or beta version, which may not work correctly or in the same way the final version may work, and support may not be available for preview or beta versions of features or Services. Features that are available in a preview or beta version may require a fee or plan upgrade in the final release.

11. CONFIDENTIAL INFORMATION

For purposes of this Agreement, confidential information shall include Customer Data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Notwithstanding any definition contained within, personally identifiable information shall be considered confidential. Each party shall: (a) keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Either party may disclose Confidential Information on a need-to-know basis to its employees or contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of the Services. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation. With respect to any information received by either party from the other as a result of any other relationship between the parties other than in the course of performance hereunder (e.g., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any applicable Nondisclosure Agreement (or similar agreement) executed between the parties.

12. TAXES

All payments, fees and other charges payable by you to Caspio under this Agreement are exclusive of all federal, state, local and foreign taxes, levies and assessments. You are responsible for the payment of all such taxes, levies and assessments imposed on you or Caspio arising out of this Agreement, excluding any tax based on Caspio’s net income.

13. WARRANTIES

Caspio represents and warrants that (i) Caspio has all rights necessary to grant to you the rights set forth in this Agreement; (ii) the Service will perform substantially in accordance with the user manuals and/or technical requirements documents that are generally provided by Caspio in connection with the Service. EXCEPT FOR THE FOREGOING, THE SERVICE AND THE SOFTWARE ARE PROVIDED “AS IS” AND CASPIO HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. CASPIO DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE OR SERVICE IS ERROR-FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE.

14. LIMITATION OF LIABILITY

In no event will either party be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of this Agreement. The aggregate liability of either party to the other with respect to this Agreement is limited, to the extent possible under applicable law, to the fees collected by Caspio from you pursuant to this Agreement in the twelve months preceding the imposition of liability.

16. INDEMNIFICATION

Caspio will, at its expense, defend or at its option, settle any claim brought against you that the Service infringes any copyright, patent, trade secret, or any other proprietary right of any third party and will pay any final judgments awarded or settlements entered into; provided that you give prompt written notice to Caspio of any such claim and give Caspio the authority to proceed as contemplated herein. Caspio has the exclusive right to defend any infringement claim and make settlements thereof at its own discretion, and you may not settle or compromise such claim except with prior written consent of Caspio. You must give such assistance and information as Caspio reasonably requires.

In the event any infringement claim, action or allegation is brought or threatened, Caspio may, at its sole option and expense: (i) procure for you the right to continue use of the Service or infringing part thereof; (ii) modify, amend, or replace the Service or infringing part thereof, with other software having reasonably comparable capabilities; or, if neither of the foregoing is commercially practicable, (iii) terminate this Agreement and refund to you the prorated amount of the fees prepaid by you that were to apply to the remainder of the unexpired Term, as calculated from the termination date through the remainder of the unexpired Term.

The foregoing obligations will not apply to the extent the infringement arises as a result of: (i) any use of the Service in a manner other than as specified in this Agreement; (ii) any use of the Service in combination with other products, equipment, devices, software, systems or data not supplied by Caspio to the extent such claim is directed against such combination; or (iii) any alteration, modification or customization of the Service made by any party other than Caspio or Caspio’s authorized representative if such infringement would not have occurred without such modification or combination.

This Section states the entire liability of Caspio with respect to infringement of any patent, copyright, trade secret or other intellectual property right.

you shall indemnify, hold harmless and defend Caspio, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Caspio or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Caspio or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your use of the Services to serve applications and data to your end users, or (ii) your breach of this Agreement, (iii) your negligence or willful misconduct in connection with the Service, or (iv) your violations of applicable law in connection with the Services.

17. COMPLIANCE WITH LAWS

Each party must comply with all laws, rules or regulations applicable to such party’s activities in relation to this Agreement, including export control laws of the United States which are applicable to the Service.

This Agreement includes the Caspio Data Processing Agreement (DPA) which is incorporated herein. By agreeing to this Agreement, you also agree to the terms of the DPA. You may opt out of the DPA in its entirety by submitting a formal request to Caspio. If you choose to opt out, you will be prohibited from using the Services to process personal data regulated by the General Data Protection Regulation of the European Union (EU 2016/679).

Should you wish to use the Services in such a way to make you and your application(s) subject to other industry-specific regulations, you will be solely responsible for compliance with such regulations. Further, you may not use the Services in such a way that would subject Caspio to those regulations without obtaining Caspio’s prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle “Protected Health Information” (as defined in 45 C.F.R. §160.103 under United States federal regulations) without entering into a separate Business Associate Agreement (“BAA”) with Caspio and subscribing to a HIPAA-enabled service plan. To request a BAA or HIPAA-enabled service plan, contact Caspio.

Caspio does not, and will not provide you with any legal advice, directly or implied, regarding compliance with data privacy or other relevant laws, rules or regulations in the jurisdictions in which you use the Service (“Laws”). You understand that the Service can be configured and used in ways that do and do not comply with Laws and it is your sole responsibility to monitor its compliance and your employee’s compliance with all relevant Laws.

18. SEVERABILITY AND WAIVER

If any provision of this 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 Agreement shall not constitute a waiver of any other or subsequent default or breach.

19. GOVERNING LAW

Unless prohibited by law, This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to its conflicts of laws or its principles. You agree, in the event any claim or suit is brought in connection with the Caspio’s provision of the Services to you, to submit to the jurisdiction of the state of California, and agree to the courts of Santa Clara County, California as the appropriate forum. IN NO EVENT MAY THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.

20. U.S. GOVERNMENT RIGHTS

If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, shall be subject in all respects to the commercial license rights and restrictions provided in this Agreement.

21. ASSIGNMENT; CHANGE IN CONTROL

This Agreement may be assigned by Caspio to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any actual or proposed change in control of you that results or would result in a direct competitor of Caspio directly or indirectly owning or controlling 50% or more of you shall entitle Caspio to terminate this Agreement for cause immediately upon written notice.

22. NOTICES

All notices hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, by overnight courier or, in the case of notices to Customer, by email, addressed as follows:

To Customer: By email to the Account’s primary email address (as may be updated by Customer from time to time).

To Caspio: Caspio, Inc., Attn: Legal Department, 1286 Kifer Road, Suite 107, Sunnyvale, CA 94086 USA with a copy by email to legal@caspio.com or to such other persons or places as Caspio may from time to time designate by written notice to Customer.