SENDGRID, INC.
APPLICATION EVALUATION AND TESTING AGREEMENT

Terms Version Date: January 22, 2018

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 Application 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 an “Accept” button (or similar button) (the “Effective Date”). Once entered into, this Agreement forms a binding legal agreement between SendGrid and You.

This Agreement applies to Your use of the Apps. In addition to this Agreement, if any App also accesses the SendGrid services relating to the development, transmission, analysis, and management of email messages and other digital communications and tools (the “Services” and, together with the Apps, the “Platform”), then Your access to and use of the Services through the App are also subject to SendGrid’s Terms of Service (“Terms of Service”) available at www.sendgrid.com or such other sites as may be designated by SendGrid (the “Site”). Your access to and use of the Services through any App is also subject to SendGrid’s then-current policies relating to the Platform, including, without limitation, the then-current SendGrid Privacy Policies and Email Policy available on the Site. You are responsible for compliance with the Terms of Service and with these policies (and all other SendGrid policies applicable to Your access and use of the Platform provided on or through the Platform).

BY CLICKING ON THE “ACCEPT” BUTTON 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.

  1. Definitions. All capitalized terms defined in this Agreement will have the meanings given to them in this Agreement, and other terms will have their plain English meaning as commonly interpreted in the United States.
  2. Changes to this Agreement. SendGrid reserves the right, at any time, to change or modify this Agreement by making such change or modification available on the Site or by providing other notice to You. Any such change or modification will be effective 30 days after posting on the 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.
  3. Changes to the Program, Apps, Platform and Services. The features and functions of the Program, Apps, Platform and Service may change over time. Accordingly, You understand that SendGrid may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Program, Apps, Platform or Services (or any portion thereof) with or without notice.
  4. Access to 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: (a) install and operate the Apps made available to You by SendGrid solely for Your own internal Evaluation purposes; and (b) 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.
  5. Your Account. You may be required to register for and obtain an account for the Services on the Site 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, and SendGrid will not be liable for the foregoing obligations or Your failure to fulfill such obligations.
  6. Restrictions. You acknowledge 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: (a) use or access the Platform or any portion thereof, except as expressly provided in this Agreement; (b) modify, adapt, alter, translate, or create derivative works from the Platform; (c) sublicense, distribute, sell, convey, assign, pledge, or otherwise transfer or in any way encumber the Platform or any portion thereof; (d) 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; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Platform; (f) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the Platform; (g) utilize the Platform for any purpose that is illegal in any way or that advocates illegal activity; (h) interfere in any manner with the operation or hosting of the Service; (i) use automated scripts to collect information from or otherwise interact with the Platform, other than as provided by SendGrid; (j) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Platform; (k) interfere in any manner with the operation or hosting of the Site, Platform, Apps, or Services, or attempt to gain unauthorized access to the Site, Platform, Apps or Services; or (l) use the Platform, Site, Apps or Services for any high risk activities including, but not limited to, the operation of nuclear facilities, air traffic control, life support systems, emergency services or where the use or failure of the Service could lead to death, personal injury or environmental damage (collectively, “High Risk Activities”).  SendGrid does not intend uses of the Platform to create obligations under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”) or similar international, federal, state or local treaties, laws, rules, regulations or ordinances (“Laws”) and makes no representations that the Platform, Apps, Program or Service satisfies the requirements of such Laws. If You are (or become) a Covered Entity or Business Associate (as defined in HIPAA) or a Financial Institution (as defined in GLBA), You agree not to use the Platform or the Service for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in GLBA).
  7. 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, such support, maintenance or training will be provided at SendGrid’s sole discretion and convenience. 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.
  8. Ownership. The Platform, Apps, Program, Services 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, Program and Site. 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, Program or Site or any intellectual property rights therein or relating thereto. Any rights not expressly granted to You under this Agreement are reserved by SendGrid.
  9. 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.
  10. 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. If You provide SendGrid with Feedback, SendGrid may use such Feedback without obligation to You, and You hereby irrevocably assign to SendGrid all right, title, and interest in such Feedback.
  11. Term and Termination. The term of this Agreement will begin on the Effective Date and will continue until terminated as set forth in this Section. SendGrid shall have the right to terminate this Agreement immediately upon any breach by You. In addition, SendGrid may terminate this Agreement, for any reason or no reason, effective immediately upon written notice to You. SendGrid may also suspend Your access to any App or the Service with or 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: (a) cease all use of all Apps and all access to the Services through any App; (b) at the option of SendGrid, return to SendGrid or destroy, all Apps and any Confidential Information (as defined below); and (c) 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. The relevant portions of Section 6 (Restrictions), Section 8 (Ownership), Section 10 (Feedback), this Section 11 (Term and Termination), Section 12 (Warranties and Disclaimer), Section 13 (Indemnity), Section 14 (Limitation of Liability), Section 15 (Confidentiality), Section 16 (Your Content), Section 17 (Data Privacy), Section 18 (Equitable Relief), Section 19 (Fees and Payment) and Section 21 (General) will survive termination of this Agreement for any reason.
  12. Warranties and Disclaimer.

(a) Warranties by You. You hereby represent, warrant, and covenant for the benefit of SendGrid that: (i) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (ii) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with Your use of the Platform; (iii) Your Content, and any other data, information or content You provide to SendGrid in connection with this Agreement and Your access to the Site and use of the Platform, is correct and current, does not or will not violate this Agreement and the use by SendGrid thereof will not, infringe or misappropriate any third party copyright or other intellectual property right; (iv) You have all necessary right, title, interest and consent necessary to allow SendGrid to use Your Content for the purposes for which You provide Your Content to SendGrid; (v) You will not export or re-export the Service except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable; (vi) You will not remove or export from the United States or allow the export or re-export of the Platform (A) into (or to a national or resident of) any embargoed or terrorist-supporting country, (B) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (C) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (D) otherwise in violation of any export or import Laws; and (vii) You are not located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list referred to in subsection (vi) immediately above (for more information, see the U.S. Department of Treasury website at https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx); (viii) You will comply with any applicable Laws regarding Your use of or access to the Site or Platform or regarding Your business, products or services.

(b) 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. THE PLATFORM IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES. NEITHER SENDGRID NOR ITS LICENSORS WARRANT THAT THE OPERATION OF THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED. 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.

  1. Indemnity. You will indemnify, hold harmless, and defend SendGrid and its affiliates, officers, directors, employees, contractors, licensees and agents and their successors and assigns 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 (a) Your use of or access to any App or other portion of the Platform; (b) Your actual or alleged breach of any provision of this Agreement; or (c) SendGrid’s access to, use of or processing of Your Content, including any Sensitive Data (as defined below) that You are prohibited from submitting through the App.  SendGrid will provide You with notice of any such claim or allegation, and SendGrid will have the right to participate in the defense of any such claim at its expense.
  2. LIMITATIONS OF LIABILITY.

(a) NO SPECIAL DAMAGES. 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 YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE.

(b) CUMULATIVE LIABILITY. 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 JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, SENDGRID’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

(c) SPECIAL LIMITATIONS. FOR THE PURPOSE OF CLARITY, SENDGRID WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU, FOR (I) SENSITIVE DATA SENT TO SENDGRID; (II) VIOLATION OF ANY LAW BY SENDGRID WHEN ACTING AT YOUR DIRECTION; OR (III) THE SENDING BY SENDGRID OF YOUR EMAILS OR OTHER COMMUNICATIONS, INCLUDING ANY CLAIMS AGAINST SENDGRID DUE TO YOUR SENDING OR DATA COLLECTION PRACTICES OR YOUR CONTENT.

  1. 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.
  2. Your Content. If the Platform permits You to transmit to SendGrid or to any third party any content, data, or other information (“Your Content”), You retain all rights in Your Content. You grant SendGrid all licenses and other rights to reproduce, distribute, display, perform, modify and otherwise utilize all of Your Content as necessary to operate the Platform and provide the Services.
  3. Data Privacy. Except to the extent required to set up Your access to the App for the purposes of the Program, You agree not to submit, transmit or otherwise disclose any Sensitive Data through the Platform. For purposes of this Agreement, “Sensitive Data” means means (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (c) employment, financial, genetic, biometric or health information, (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (e) account passwords, (f) date of birth, (g) criminal history, (h) mother’s maiden name or (i) any other information or combinations of information that is deemed sensitive under the legal framework of any applicable jurisdiction. To the extent You do so, You shall remain solely liable for the handling of such Sensitive Data (whether by SendGrid or other third parties under this Agreement) and for any legal obligations that arise in connection with the same. SendGrid will have the right to collect, extract, compile synthesize, and analyze data or information relating to Your utilization of or access to the Platform (“Service Data”). For the avoidance of doubt, the Service Data will exclude any of Your Content provided to SendGrid. To the extent any Service Data is collected by SendGrid, it 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.
  4. 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 Your 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).
  5. Fees and Payment.

(a) Fees. You agree to pay SendGrid all fees set forth in any order agreed to by the parties (“Fees”).  All Fees will be billed as indicated in each order. Unless SendGrid and You expressly agree otherwise in writing, all Fees are payable in United States dollars.  You will also be responsible for all use, sales, and other taxes imposed on the Services, other than taxes that are imposed on or measured by the net income, property tax or payroll taxes of SendGrid. SendGrid may change any portion of the Fees by posting the changes to the Site or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next renewal term.

(b) Payment Terms. If the applicable order does not specify the payment terms, the initial payment of Fees specified under such order for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement.  If You have specified credit card, or direct withdrawal or ACH payment from a bank account, as an applicable payment mechanism under this Agreement, You grant SendGrid the right to charge the credit card or debit the bank account provided to SendGrid for all Fees incurred under this Agreement.  Except as expressly set forth herein or agreed to in writing with SendGrid, all Fees will be non-refundable once paid to SendGrid, including upon any termination or suspension of this Agreement.  Subject to Section 19(c) (Fee Disputes), if You are overdue on any payment of Fees and fail to pay within five business days of a written notice of overdue payment, SendGrid may charge You a late fee equal to the lesser of 1½% per month or the maximum amount permitted under applicable Law.  If SendGrid requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses.

(c) Fee Disputes.  In the event You dispute any portion of the Fees paid or payable by You under this Agreement, You must provide written notice to SendGrid within 60 days of the invoice and the parties will work together to resolve the applicable dispute promptly. If You do not provide written notice of Your fee dispute within such 60-day period, You will not be entitled to dispute any Fees paid or payable.

  1. Claims of Infringement.  Just as SendGrid requires users of the Platform and the Site to respect the intellectual property rights of SendGrid, its affiliates, and other third parties, SendGrid respects the intellectual property rights of users of the Apps and Site and other third parties.  If You believe in good faith that Your copyrighted work has been reproduced on the Site without authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:

SendGrid, Inc.

Attn: Copyright Infringement Agent

1801 California Street, Suite 500

Denver, Colorado  80202

U.S.A.

Please provide the following information to SendGrid’s Copyright Infringement Agent: 

(a) the identity of the infringed work, and of the allegedly infringing work;

(b) Your name, address, daytime phone number, and email address, if available;

(c) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the Law;

(d) a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and

(e) Your electronic or physical signature. 

21. General. This Agreement will be governed by the laws of the State of Colorado, U.S.A., without regard to conflicts of law principles thereof. The federal court in the District of Colorado, U.S.A., or state court in Denver, Colorado, U.S.A. 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.  All waivers under this Agreement must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the Law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the Law, and the remaining provisions will remain in full force.  The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.  Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of SendGrid.  Any assignment in violation of the foregoing will be null and void.  SendGrid may assign this Agreement to any party that assumes SendGrid’s obligations hereunder.  This Agreement does not confer any benefits on any third party unless it expressly states that it does. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.  This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.  SendGrid provides the Platform, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If You (or any of Your customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Platform, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement.  All other use is prohibited and no rights than those provided in this Agreement are conferred. The Platform was developed fully at private expense.  SendGrid may reference You as a user of the Platform and use Your name and logo, as applicable, in listings of users of the Platform appearing on the SendGrid Site and for other marketing and promotional purposes relating to the Platform.

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