APPLICATION EVALUATION AND TESTING AGREEMENT
Terms Version Date: February 12, 2013
Thank you for participating in the SendGrid, Inc. ("SendGrid") application evaluation and testing program (the "Program"). The Program enables You to use certain applications designated by SendGrid (the "Apps") for internal, non-production, evaluation and testing ("Evaluation") purposes.
Please carefully read this App Evaluation and Testing Agreement (this "Agreement"). This Agreement establishes the terms under which SendGrid will permit you, or if you represent an entity or other organization, that entity or organization (in either case, "You"), to access and use the Apps. You enter into this Agreement with SendGrid as of the earlier of the date You first use or access any App or click on the "Accept" button (or similar button) below (the "Effective Date"). Once entered into, this Agreement forms a binding legal agreement between SendGrid and You.
BY CLICKING ON THE "ACCEPT" BUTTON BELOW OR BY USING ANY APP, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, SENDGRID IS NOT WILLING TO PERMIT YOU TO USE THE APPS (AND YOU MUST NOT ACCESS OR USE THE APPS). IF YOU ACCESS OR USE ANY APPS, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
SendGrid reserves the right, at any time, to change or modify the Program, Apps, Platform, Services or this Agreement, by making such change or modification available on this web site or by providing other notice to You. Any such change or modification will be effective 30 days after posting on the web site or such other notice. As applicable, You will be deemed to have agreed to such change or modification through Your continued use of the Apps.
1. DEFINITIONS. All capitalized terms defined in this Agreement will have the meanings given to them in this Agreement. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.
2. APPS. During the term of this Agreement, and provided that You remain in compliance with the terms of this Agreement, SendGrid grants to You a limited, non-exclusive, personal, non-transferable, non-sub-licensable right to: (1) install and operate the Apps made available to You by SendGrid solely for Your own internal Evaluation purposes; and (2) as applicable, access and use the Services through the normal operation of the Apps solely for Your own internal Evaluation purposes. All use of any App will be solely by You for Your own internal Evaluation purposes and at all times in accordance with this Agreement and any applicable separate agreement or documentation applicable to that App provided by SendGrid.
3. SERVICES. In addition to the terms of this Agreement, all access to and use of the Services through any App will be subject to the then-current version of the Terms of Service applicable to the Services and any applicable separate policy or documentation provided by SendGrid in connection with the Services. All access to the Services through any App will be solely by You for your own internal Evaluation purposes and at all times in accordance with this Agreement.
4. YOUR ACCOUNT. You may be required to register for and obtain an account on the Services in order to access and use any App that uses the Services (an "Account"). The Account may be accessed and used only by You for purposes accessing the Services as permitted herein. You are solely responsible for all use of the Account and any access to the Services through the Account. You will ensure the security and confidentiality of all usernames and passwords associated with the Account. Any transactions completed through the Account will be deemed to have been completed by or on Your behalf.SendGrid will not be liable for the foregoing obligations or Your failure to fulfill such obligations.
5. RESTRICTIONS. You acknowledge that the Platform, as well as the databases, software, hardware and other technology used by or on behalf of SendGrid to provide the Platform and their structure, organization, and underlying data, information, and source code thereof, constitute intellectual property of SendGrid. In addition to the other restrictions in this Agreement, You will not and will not permit any third party to: (1) use or access the Platform or any portion thereof, except as expressly provided in this Agreement; (2) modify, adapt, alter, translate, or create derivative works from the Platform; (3) sublicense, distribute, sell, convey, assign, pledge, or otherwise transfer or in any way encumber the Platform or any portion thereof; (4) use the Platform for the benefit of any third party or make the Platform available to any third party, whether through a service bureau, outsourcing, application service provider, hosting, lease, rental, loan or other arrangement, except as expressly authorized by SendGrid; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Platform; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the Platform; (7) utilize the Platform for any purpose that is illegal in any way or that advocates illegal activity (8) interfere in any manner with the operation or hosting of the Service; (9) use automated scripts to collect information from or otherwise interact with the Platform, other than as provided by SendGrid; or (10) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Platform.
6. NO SUPPORT OR MAINTENANCE. SendGrid is under no obligation to provide You with any support, maintenance, or training relating to the Apps. Notwithstanding the foregoing, should SendGrid elect to provide You with any support, maintenance or training for any App, that support, maintenance or training will provided at sole discretion and convenience of SendGrid. Any updates, upgrades, new versions, or new releases of or to any App provided by SendGrid will be treated as part of the applicable App for purposes of this Agreement.
7. OWNERSHIP. The Platform and any derivatives, modifications, improvements or enhancements thereof or thereto, created by either party, either alone or with the other party or any third party, and all intellectual property rights therein or relating thereto, are and will remain the exclusive property of SendGrid and its licensors. You agree to and hereby make all assignments necessary to provide SendGrid with all such ownership rights in the previous sentence. You will perform all acts reasonably necessary to assist SendGrid in perfecting and defending SendGrid ’s ownership interest in the Platform. Except as expressly granted in this Agreement, SendGrid grants no rights or licenses to You (whether by implication, estoppel, or otherwise) in or to the Platform or any intellectual property rights therein or relating thereto. Any rights not expressly granted to You under this Agreement are reserved by SendGrid.
8. THIRD PARTY CODE. The Apps may contain or include software code owned or provided by third-party licensors of SendGrid ("Third-Party Code"). For any Third-Party Code clearly indicated to be subject to the terms of a third party license (a "Third-Party License"), the terms of the applicable Third-Party License will apply to the Third-Party Code independent of the terms of this Agreement. All other Third-Party Code provided to You by SendGrid may be used only under the terms of this Agreement. Nothing in this Agreement limits Your rights under, or grants rights to You that supersede, the terms of any such applicable Third-Party License.
9. FEEDBACK. You agree to provide SendGrid with prompt notice of any problems You experience with any App and with all other observations, comments, criticisms, suggestions, and other feedback about the use, operation, performance, functionality or features of the Apps ("Feedback") reasonably requested by SendGrid. SendGrid has the right to use the Feedback You provide at SendGrid’s sole discretion, including incorporating any portion of the Feedback into the Apps or Platform or any other products or services, without notice to, payment to, or consent from You. You hereby grant to SendGrid a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, fully paid, fully transferable, fully sublicensable license to use, reproduce, distribute, perform, display, modify, create derivative works of, make, have made, use, import, sell, and offer to sell the Feedback, in any form and for any purpose. SendGrid will not use Your name or trademarks in external communications without Your prior consent.
10. TERM AND TERMINATION. The term of this Agreement will begin on the Effective Date stated above and will continue until terminated as set forth in this Section. This Agreement will terminate immediately upon any breach by You. In addition, SendGrid may terminate this Agreement, for any reason, effective immediately upon written notice to You. SendGrid may also suspend Your access to any App or the Service without notice to You. Upon any termination or expiration of this Agreement all rights and licenses granted to You hereunder will immediately terminate and You will immediately and at Your expense: (1) cease all use of all Apps and all access to the Services through any App; (2) at the option of SendGrid, return to SendGrid or destroy, all Apps and any Confidential Information (as defined below); and (3) upon the request of SendGrid, certify in writing (signed by You or, if applicable, an officer of Your entity or other organization) that You have complied with the terms of this Section REF _Ref332184635 \w \h 10. The relevant portions of Sections REF _Ref332184482 \w \h 7, 10, 11, 12, 13, 14, 15, 16, 17, and 18 will survive termination of this Agreement for any reason.
11. DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE THAT THE PLATFORM (INCLUDING ALL APPS AND THE SERVICE) IS PROVIDED BY SENDGRID AND ITS LICENSORS "AS IS" AND "AS AVAILABLE," WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND. SENDGRID EXPRESSLY DISCLAIMS, AND YOU DISCLAIM ANY RELIANCE ON, ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESSED OR IMPLIED, REGARDING THIS AGREEMENT AND THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SENDGRID OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY SENDGRID AS AN AMENDMENT TO THIS AGREEMENT.
12. INDEMNITY. You will indemnify, hold harmless, and defend SendGrid (and its officers, directors, employees, contractors, and agents) from and against any damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) of any kind or nature incurred in connection with or as a result of (1) Your use of or access to any App or other portion of the Platform; (2) Your actual or alleged breach of any provision of this Agreement; or (3) SendGrid’s access to or use of Your Content (as defined below).
13. LIMITATION OF LIABILITY. IN NO EVENT WILL SENDGRID BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE OR ACCESS THE PLATFORM (INCLUDING ANY APP OR SERVICE), INCLUDING, WITHOUT LIMITATION, ANY LOST, CORRUPTED OR ALTERED DATA OR INFORMATION, LOSS OF USE OF DATA OR INFORMATION, RECOVERY OF DATA OR INFORMATION, OR LOSS OR INTERRUPTION OF BUSINESS OR PROFITS, EVEN IF SENDGRID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. IN NO EVENT WILL THE LIABILITY OF SENDGRID RELATING TO THIS AGREEMENT, THE PLATFORM, OR ANY RESULTS OBTAINED FROM THE USE OF OR ACCESS TO THE PLATFORM, EXCEED $25. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, SENDGRID’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. CONFIDENTIALITY. For purposes of this Agreement, "Confidential Information" means the Platform, Feedback, and all documentation, information, data, and materials relating to the Platform and Feedback, regardless of the form thereof, including all copies and extracts thereof. You will not disclose Confidential Information to any third party without SendGrid’s prior written consent. You may disclose the Confidential Information only to those of Your employees who have a need to know the Confidential Information for purposes of the Evaluation of the Platform as permitted under this Agreement and who are bound by an obligation of confidentiality at least as protective of the Confidential Information as the terms of this Agreement. You will treat all Confidential Information with the same degree of care as You treat Your own confidential information which, in no event, will be less than reasonable care. You will not utilize the Confidential Information other than as expressly permitted in this Agreement.
16. DATA PRIVACY. SendGrid will have the right to collect, extract, compile synthesize, and analyze data or information resulting from Your utilization of or access to the Platform ("Data"). For the avoidance of doubt, the Data will exclude any of Your Content provided to SendGrid. To the extent any Data is collected by SendGrid, the Data will be solely owned by SendGrid and may be used by SendGrid for any lawful business purpose without a duty of accounting to You or any third party, provided that the Data is used only in an aggregated form without specifically identifying You as the source of the Data.
17. EQUITABLE RELIEF. You acknowledge and agree that due to the unique nature of the Platform and the Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow You or third parties to unfairly compete with SendGrid resulting in irreparable harm to SendGrid, and therefore, that upon any such breach of this Agreement or threat thereof, You will not oppose any attempt by SendGrid to obtain, in addition to whatever remedies it may have at law, an injunction or other appropriate equitable relief without making any additional showing of irreparable harm (and agrees to support the waiver of any requirement that SendGrid be required to post a bond prior to the issuance of any such injunction or other appropriate equitable relief).
18. GENERAL. This Agreement will be governed by the laws of the State of Colorado, without regard to conflicts of law principles thereof. The federal and state courts in Denver, Colorado will have sole and exclusive jurisdiction over any disputes arising hereunder and the parties hereby irrevocably submit to the personal jurisdiction of such courts. The parties expressly waive any applications of the U.N. Convention on Contracts for the International Sale of Goods with respect to the performance or interpretations of this Agreement. This Agreement supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect. The relationship between the parties is that of independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other, and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable law. You may not assign or delegate, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement to any third party without the prior written consent of SendGrid. For the purposes of this Section, any change of control of You will be deemed an assignment. Any assignment in violation of the foregoing will be null and void, and will be considered a breach of this Agreement. SendGrid may reference You as a user of the Apps and use Your name and logo, as applicable, in listings of users of the Apps appearing on the applicable SendGrid web site and for other marketing and promotional purposes relating to the Apps.