THIS TRIAL SERVICE AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACCESS AND USE OF VALIMAIL’S COMPLEMENTARY OFFERINGS, AND/OR TECHNOLOGY (“TRIAL SERVICE(S)”) PROVIDED UNDER A LIMITED FREE TRIAL SERVICE AND MADE AVAILABLE BY VALIMAIL INC. (“VALIMAIL”). BY CLICKING “SUBMIT” OR “ACCEPT” AND/OR ACCESSING OR USING SUCH SERVICES, YOU CONFIRM THAT YOU HAVE READ AND ACCEPT THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE FREE TRIAL SERVICE. BY ACCEPTING THIS AGREEMENT, YOU GRANT PERMISSION TO BE CONTACTED WITH TRIAL INFORMATION AND TO RECEIVE PROMOTIONAL, SALES, AND MARKETING INFORMATION DURING THE TRIAL PERIOD (AS DEFINED BELOW).
Scope
Access. Subject to the terms and conditions of this Agreement, Valimail hereby grants You, a limited, non-exclusive, non-transferable, non-assignable, revocable right to access and use the Trial Service solely for business purposes and strictly for purposes of internal evaluation. Valimail reserves the right to make changes, modifications, reduction in functionality and enhancements to the Trial Services, at any time, and from time to time without prior notice. By using the Trial Service, you represent you will comply with all applicable laws and regulations in connections with your access and use of such Trial Service. Subject to the type of offering available, the Trial Service may allow access to the Valimail’s paying access on a restricted basis, excluding those benefits and service guarantees provided in the context of the paying services subscribed by Valimail’s paying customer, and subject to the technical constraints specified at the subscription, including without limitation to one (1) domain limitation, automation functionality, delegation of records, configuration, and other applicable restrictions, which are subject to change from time to time at Valimail’s sole discretion.
Restrictions. You shall not release to any third party the results of any evaluation of the Trial Service performed by or on Your behalf for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of Valimail. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Trial Services in any way; (ii) modify or make derivative works based upon the Trial Service; (iii) reverse engineer the Trial Service; or (iv) access the Trial Service in order to build a competitive product or service. Additionally, You shall not use the Trial Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) remove any copyright or proprietary notices contained in the Trial Service or any output thereof; (iv)send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Trial Service; or (vi) attempt to gain unauthorized access to the Trial Service or its related systems or networks.
Customer Responsibilities. You are responsible for: (a) maintaining the confidentiality of any contact information, user IDs, passwords and other credentials associated with your account, and ensuring that all such credentials are at all times up to date and accurate, (b) all activities that occur with respect to your account, including the use of the Trial Service under any credentials associated with your account and compliance with this Agreement by you and anyone acting on your behalf, and (c) any data or information you provide to Valimail in order to utilize the Trial Service. You are also responsible for modifying the DNS records or other necessary settings for your domains, in order to enable to use the Trial Service for those domains, and, also when you are no longer using the Trial Service, restoring those records or settings to their original state.
Upgrades. Your access may begin with a Trial Service; however, to the extent additional functionality or parameters are needed, you must convert such offering into a paying subscription and pay applicable fee. We reserve the right, in our absolute discretion, to determine your eligibility for the Trial Service, including creating multiple free trial accounts, and we reserve the right to withdraw or to modify such offerings at any time without prior notice and with no liability. For additional information as to our paying services please visit http://valimail.com/. Upon conversion, additional terms and conditions, including subscription terms available at https://www.valimail.com/subscription-terms/ may apply, and you hereby agree to any such additional terms and conditions, which are incorporated into this Agreement by reference and are legally binding.
Intellectual Property Ownership
Valimail (and its licensors, if applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Trial Service, including any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Trial Services. Valimail will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback and recommendations provided by You, relating to the Trail Service (“Feedback”). Any intellectual property rights which may be created as a result of Valimail using or acting upon any Feedback shall vest in, and remain the property of, Valimail. Valimail may also use the data generated in connection with Your use of the Trial Service; provided, however, such data shall be anonymized in the aggregate so that it cannot be linked specifically to You or the source of the data.
Confidentiality; Privacy
Information that is disclosed by one party (the “Disclosing Party“) to the other party (the “Receiving Party“) in connection with this Agreement that is identified as confidential or that would reasonably be understood to be confidential based on the nature of the information or the circumstances surrounding its disclosure, is Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Trial Service and all information provided or disclosed to You relating to the Free Trial Service is Our Confidential Information. The Receiving Party shall use the same degree of care to protect such Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of providing secure access to such Confidential Information.
To the extent any information provided to Valimail that relates to an identified or identifiable natural person (“Personal Data”) will be used exclusively as necessary to perform the Trial Service, and in accordance with the terms of the Agreement and the EU General Data Protection Regulation 2016/679 (“GDPR”) and the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”). Valimail shall not transfer Personal Data originating from the European Economic Area (“EEA”), United Kingdom, or Switzerland; and/or relating to natural persons of the EEA, United Kingdom, or Switzerland except in accordance with the following: (i) between Member States of the EEA, United Kingdom, or Switzerland; (ii) from any Member State of the EEA, United Kingdom, or Switzerland to any country or territory that is at the time subject to a current finding by the European Commission under the GDPR or equivalent under the Swiss Federal Data Protection Act that is applicable to the transfer; or (iii) to the United States under Valimail’s self-certification to the EU-U.S. Privacy Shield (as set out at https://www.privacyshield.gov/list). To the extent the transfer is not covered by the above mechanisms, the relevant transfer will be governed by an unmodified set of EU Model Clauses of which the body is incorporated by reference to this Agreement. “EU Model Clauses” means the standard contractual clauses annexed to the EU Commission Decision 2010/87/EU of 5 February 2010 for the transfer of personal data to processors established in third countries or any successor clauses approved by the EU Commission. Valimail will use commercially reasonable efforts to implement a variety of administrative, managerial, and technical security measures designed to protect your personal information from unauthorized use and disclosure. We cannot, however, guarantee security of the information contained in your account or otherwise collected by us and we cannot promise that such measures will prevent third-party “hackers” from illegally accessing the Trial Service or its contents. Any use of Personal Data that you provide to us during the access of the Trial Service is governed by our privacy policy available at https://www.valimail.com/privacy/(“Privacy Policy”).
Disclaimer of Warranty
THE SERVICES ARE PROVIDED “AS IS” AND VALIMAIL MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND VALIMAIL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR THE USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. VALIMAIL DISCLAIMS WARRANTIES THAT THE TRIAL SERVICE WILL BE ERROR-FREE OR UNINTURRUPTED, OR THAT WILL BE TIMELY AND MEET YOUR REQUIREMENTS, IF ANY.
Term and Termination
The Agreement shall be in effect until your Trial Period expires or is terminated pursuant to the terms herein; however, either party may terminate this Agreement, with or without cause, at any time with three (3) days written notice. Upon any termination You will delete all copies of the Trial Service from your computer or computers under your control and, upon request, certify thereto in writing. Notwithstanding the aforementioned, Valimail reserves the right to suspend the Trial Service, with or without cause, at any time. Valimail will make the Trial Service available until the earliest of: (a) the end of the period specified in the Trial; (b) the start date of any paid order form for the applicable subscription services; (c) termination by Valimail, at any time, in its sole discretion; or (d) termination by you.
Indemnification
To the extent permitted by law, You shall defend, indemnify and hold Valimail, its affiliated companies, agents or content providers, and the directors, officers, shareholders, employees, agents and representatives of each of the foregoing, harmless against and from any and all claims, damages, liabilities, costs and expenses arising out of (i) any violation of these Agreement, (ii) any modification or edit made to any portion of the Trial Service without Valimail’s consent, or (iii) the use of any portion of the Trial Service with products or services not supplied by Valimail.
Limitation of Liability
IN NO EVENT SHALL VALIMAIL BE LIABLE FOR ANY DAMAGES, OF WHATEVER NATURE, AS A RESULT OF THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF VALIMAIL HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Assignment
You may not assign this Agreement to any third party except upon Valimail’s prior written consent, which consent not to be unreasonably withheld. Any purported assignment in violation of this Section shall be void. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
General Provisions
This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules. Each party hereby consents to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California to adjudicate any dispute arising out of or relating to this Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. No joint venture, partnership, employment, or agency relationship exists between You and Valimail as a result of this Agreement or use of the Trial Services. If the use of the Trial 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), You receive only those rights with respect to the Trial Service as are granted to all other users under license, in accordance with (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. § 12.212, with respect to all other US government licensees and their contractors. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.