Affiliate Terms of Service
By signing up as an affiliate program member, You agree to the terms and conditions of this agreement ("Agreement") by which SendGrid will provide You with certain rights to market SendGrid's services to potential customers. This Agreement is made between SendGrid, Inc. ("SendGrid") and You, or, if You represent an entity or other organization, that entity or organization (in either case "You"). SendGrid provides certain services relating to the development, transmission, analysis, and management of email messages (the "Services"). Any referred end-user customers ("Affiliate") will be subject to the Terms of Service at www.sendgrid.com/tos.html ("TOS") upon ordering the Services. SendGrid reserves the right to update and change this Agreement from time to time and without notice. You can review the most current version of the Agreement at any time at http://sendgrid.com/partners/affiliate-program-terms.html
PLEASE CAREFULLY READ THIS AGREEMENT. YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
APPOINTMENT. Subject to the terms of this Agreement, SendGrid appoints You to market the Services to potential Affiliates. This Agreement is non-exclusive and nothing will restrict SendGrid from soliciting or accepting orders for the Services directly from any entity or through any third party.
AFFILIATE QUALIFICATION. To be eligible for a affiliate fee, the Affiliate must click-through a Unique URL from Your site, email, or other communications and sign up for the Services. The "Unique URL" is the link that will be provided to You that will uniquely identify You as the affiliate originator. If the potential Affiliate leaves the site from the Unique URL, and comes back later on their own through another means and orders Services, You will not earn a commission. Any Affiliate signing up for Services with Your Unique URL will become a "Qualified Affiliate" for You.
SERVICES. Subject to compliance by the Qualified Affiliate with the terms of the applicable TOS, SendGrid will provide all installation, maintenance, support, and other services to the Qualified Affiliate as set forth in the TOS.
COMPENSATION. For each Qualified Affiliate that purchases Services, SendGrid will pay You 15% of the amount paid and collected by the Qualified Affiliate for 1 year from the original date the Qualified Affiliate signed up for Services. Any amounts paid will only be calculated on the base monthly price of any Services package. If monthly base rate is reduced due to pro-ration or promotion, commission paid on reduced monthly base rate. No commissions will be paid on overages or any pay per email plan. No compensation will be owed by SendGrid to You: (a) or any third party entering into a TOS that was not a Qualified Affiliate under this Agreement; (b) any fees generated by any Affiliate or Qualified Affiliate other than for access to any Services under a TOS; (c) unless and until a binding TOS is entered into between SendGrid and such Qualified Affiliate within the time period set forth above; (d) any Services that are free to the Qualified Affiliate, overages over the base monthly rate of any Service package, or for plans with no base monthly rate (pay-per-email); or (e) at SendGrid's sole discretion if commissions earned through fraudulent, illegal, or overly aggressive, questionable sales or marketing methods.
PAYMENT. Upon a determination by SendGrid that the criteria in this Agreement have been satisfied with respect to a Qualified Affiliate, SendGrid will pay You the applicable amount due for such Qualified Affiliate within 30 days following the end of the month in which SendGrid receives payment from the Qualified Affiliate under the applicable TOS. SendGrid will not be obligated to pay any amounts to You until SendGrid has actually received full payment (in cash or equivalent) of all applicable fees from an applicable Qualified Affiliate that is not subject to refund or return to the Qualified Affiliate. You will be responsible for payment of all taxes (other than taxes based on SendGrid's income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of any consideration to You under this Agreement. All payments will be made to You by SendGrid, PayPal, Dwolla or other payment provider at SendGrid's sole discretion, and no checks or other payment method will be utilized. If You do not have a PayPal, Dwolla or other selected payment provider account, you may be required to sign up for one. No payment will be made until at least $100 or more has aggregated in Your account. Upon request, You will be responsible to provide a Form W-9 with your taxpayer identification number to SendGrid or any payment provider that SendGrid has authorized.
WARRANTIES AND DISCLAIMER. Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) the person accepting this Agreement on such party's behalf has been duly authorized and empowered to enter into this Agreement; and (c) it will at all times comply with all applicable laws and regulations and refrain from any unethical conduct or any other conduct that might damage the reputation of SendGrid or the Services in performing its obligations under this Agreement. You represent, warrant and covenant to SendGrid that You: (a) will refrain from any conduct that might damage the reputation of SendGrid or any Services; (b) will make no false or misleading representations or statements concerning SendGrid or any Services; (c) is not (and will not become) an agent of any entity that competes with SendGrid for customers; (d) will not interfere with SendGrid's right to contract freely with any Affiliate, Qualified Affiliate, or other third party; (e) will not make or publish any representations, warranties, or guarantees concerning the Services that are inconsistent with the express warranties contained in the TOS for the Services and (f) You are over 18 years of age. You will be solely responsible for any representations, warranties, or guarantees made or published concerning the Services by or on behalf of You to the extent that such representations, warranties, or guarantees are inconsistent with any warranties in this Agreement or TOS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR TH TOS, ALL SERVICES ARE PROVIDED 'AS IS' AND WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SENDGRID EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES, OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY TOS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALINGS OR USAGE IN TRADE. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.
INDEMNIFICATION. You agrees to defend, indemnify and hold harmless SendGrid and its licensors, affiliates, officers, directors, shareholders, employees, agents and representatives from and against any claim, loss, liability, cost, judgment, award, settlement, penalty, action, damage, charge, expense or fee (including reasonable attorneys' fees) of any nature, and any claims, allegations or suits therefore, arising out of or relating to: (1) any breach by You of its obligations, duties, or responsibilities under this Agreement; (2) any actions or omissions on the part of You under this Agreement; (3) any representations, warranties, guarantees or other written or oral statements made by or on behalf of You relating to SendGrid Services; or (4) any claims or allegations against SendGrid made by End Users who receive the Services, except to the extent subject to a warranty permitted hereunder.
LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING OUT OF THE INDEMNIFICATION SECTION ABOVE OR OUT OF ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY: (1) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT; AND (2) EACH PARTY'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID TO YOU IN THE 3 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. ANY ACTION BROUGHT BY EITHER PARTY TO ENFORCE THE TERMS OF THIS AGREEMENT MUST BE BROUGHT WITHIN 1 YEAR OF THE ACTUAL CAUSE OF SUCH ACTION.
TERM AND TERMINATION. This Agreement will commence acceptance and will continue until terminated by either party. Either party may terminate this Agreement for convenience, effective immediately upon notice. SendGrid, in their sole discretion, may reject application by any affiliate member at any time for any reason or end the affiliate program in its entirety at any time.
INTELLECTUAL PROPERTY OWNERSHIP. SendGrid and all worldwide intellectual property rights therein and thereto, are and shall remain the exclusive property of SendGrid. All rights in and to Services (and any software, hardware or other technology use to provide Services) not expressly granted to You in this Agreement are reserved by SendGrid and its suppliers.
- Assignment. You may not assign or transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement (including any license granted hereunder), or delegate any of its duties under this Agreement, to any third party without SendGrid's prior consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.
- Governing Law and Venue. This Agreement will be governed by the laws of the State of Colorado as such laws apply to contracts between Colorado residents performed entirely within Colorado. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement will be brought in a state or federal court located in Denver, Colorado and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
- Remedies. Except as expressly provided herein, the parties' rights and remedies under this Agreement are cumulative. You acknowledges that SendGrid Services contain valuable trade secrets and proprietary information of SendGrid, that any actual or threatened breach of the provisions of this Agreement relating to SendGrid Services or the other intellectual property rights of SendGrid will constitute immediate, irreparable harm to SendGrid for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorney's fees, court costs, and other collection expenses, in addition to any other relief it may receive.
- Severability. If any provision of this Agreement is 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 will continue in full force and effect. Without limiting the generality of the foregoing, the parties agree that Section 8 will remain in effect notwithstanding the unenforceability of any provision in Sections 6 or 7.
- Relationship. SendGrid and You are acting solely as independent contractors, and neither party is an agent or partner of the other. Nothing in this Agreement will be deemed to constitute a partnership, joint venture, or joint employer relationship between the parties. Neither party will hold itself out as having any authority to enter into any contract or create any obligation or liability on behalf of or binding upon the other party.