Caspio Managed Application Services Agreement

This Managed Application Services Agreement (“MAS 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 Managed Application Service, Customer must already have a registered account for the Caspio Platform, being is Caspio’s online application development framework and hosting environment, which has separate plans (with separate terms) and pricing, and is 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. Customer may also request development of new applications or enhancements to existing applications, which request Caspio will evaluate on a case by case basis, and may not accept in its sole discretion.

3. Authorized Points of Contact

Caspio will designate a single point of contact for most day to day needs of the Customer under this MAS Agreement; from time to time, tasks requiring specialized skills or full development cycles may require a different Caspio point 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 services. Caspio staff will schedule the services 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.

If the service request is an application development project with a development schedule and/or scope beyond the scale covered in the Customer’s MAS plan, Caspio will work with the Customer to scope and develop the project in iterations (development “sprints”). If project hours exceed the MAS plan’s allocated hours, Customer must upgrade to the next plan or pay for overage hours. A Service Usage report will be sent to Customer and an invoice for the overage hours will be issued based on the usage.

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

Your Caspio MAS plan includes a specific number of service hours per month, which shall be utilized by Caspio staff in 15 minute increments. Only hours actually accrued through the current month can be used, irrespective of any longer prepayment of the MAS plan. Paid but unused hours are accumulated for a maximum of 12 months and can be used during the remainder of the term, but although Customer may accrue the unused hours for future use, Caspio shall not be obligated to deliver the sum total of the accrued hours in any one month, above and beyond the contracted services hours in the Customer’s plan. Caspio shall collaborate with the Customer to utilize any backlogged accrued hours as quickly as possible, based upon Caspio’s resource availability, and at Caspio’s sole discretion. If during any month you incur more hours than your allocated and/or accrued hours, you will be billed for the extra hours at the hourly overage rate specified in your MAS plan.

For calculating your monthly hourly usage, Developer, Expert Sessions, Support Engineer and Project Management hours are calculated on a straight time basis. Quality Assurance and Administrative support hours are converted at 50% of Developer time for these roles. Architect and Backend Development hours are converted at 200% of Developer time for these roles.

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 such hours is not guaranteed, and will be scheduled and provided at Caspio’s sole discretion.

Your monthly fee is due on the first of every month regardless of whether an invoice is generated. Caspio will not be obligated to provide services under this MAS Agreement if the account is past due. Interest at the rate of 1.5% per month shall accrue on any overdue balance. The credit card registered in your Caspio Platform account will be used as the default form of payment, unless you pre-pay fees annually. Overage hours used may be billed at any time during the month that the total accrued overage fees reach or exceed $1,000, and otherwise shall be billed at the end of the month.

Pricing of services is in United States dollars regardless of the currency of your Platform account. The amounts payable 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.

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 MAS 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 applicable Statement of Work or other agreed Work Scope documentation.

EXCEPT AS PROVIDED IN THIS SECTION 10, 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 MAS 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 MAS Agreement is annual, commencing on the Effective Date, and will renew automatically for another term of equal length at the end of each term, unless either party provides notice of its intent to terminate this MAS Agreement ninety (90) calendar days in advance of the end of any term.

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

If this MAS Agreement terminates under any circumstance, all unused MAS hours as of the termination date shall be forfeited.

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

11. General

Notices. All notices, consents, demands and approvals under this MAS Agreement must be delivered in writing by courier or by certified or registered mail (postage prepaid and return receipt requested) at the address provided below, and will be effective upon receipt or five (5) calendar days after being deposited in the mail as required, whichever occurs sooner.

Caspio, Inc.
Legal Department
1286 Kifer Road, Suite 107
Sunnyvale, CA 94086 USA

Export Control. Customer will comply with all applicable export and import control laws and regulations of the United States and any foreign jurisdiction in which the services or deliverables are used and, in particular, Customer will not export or re export any deliverables without all required United States and foreign government licenses. Customer acknowledges and understand that the deliverables may contain encryption technology that may require an export license from the U.S. State Department and that export or re-export of the deliverables to certain entities and certain countries is prohibited. Customer will defend, indemnify and hold harmless Caspio from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.

No 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. 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.

Waiver. All waivers must be in writing. Any waiver or failure to enforce any provision of this MAS Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

U.S. Government End Users. The deliverables are a “commercial item” as that term is defined at 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 49 C.F.R. 227.7202-4, all U.S. Government end users acquire the deliverables with only those rights set forth therein.

Choice of Law. This MAS Agreement will be governed by the laws of the State of California, as such laws apply to contracts between California residents negotiated, executed and performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this MAS Agreement. Any action or proceeding arising from or relating to this MAS Agreement must be brought exclusively in a federal court in the Northern District of California or in state court in Santa Clara County, California, and each party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding.

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.

Counterparts. This MAS Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one and the same agreement.