Supplier Purchase Order Terms and Conditions
Last Updated: December 28, 2022
These Twilio terms and conditions (“Terms and Conditions”) govern the rights, remedies and obligations of Twilio Inc. or an entity controlled by Twilio Inc. or subject to common control with Twilio Inc. (“Twilio”) and a supplier (the “Supplier”) of items and materials, including products, hardware, software, furniture, equipment, and merchandise (“Products”) and services (“Services”) under purchase orders issued by Twilio and agreements, engagement letters, statements of work, or other documents mutually executed by Twilio and Supplier that refer to or incorporate these Terms and Conditions (each, an “Order Form”). These Terms and Conditions will be deemed accepted by: (i) Supplier’s commencement of performance; (ii) Supplier’s shipment of any items specified in an Order Form; and/or (iii) any other indication of Supplier’s agreement to an Order Form, whichever occurs first. Any terms, conditions or provisions of any Supplier quotation, confirmation, order acknowledgement, invoice, or other commercial document sent to Twilio are hereby rejected, and shall not constitute additional or modified terms. Any or all of such proposed terms will not operate as a rejection of this offer, but shall be deemed a proposed material alteration thereof, and this offer will be deemed accepted by Supplier without and not including such proposed terms. Notwithstanding the foregoing, if the parties have mutually executed a master services agreement, independent services agreement, purchase agreement, or any other definitive agreement (“Parent Agreement”) covering Products and Services, the terms of such Parent Agreement shall prevail over these Terms and Conditions. For the purposes of these Terms and Conditions, online terms or agreements that Twilio accepts to login or access Products or Services, such as a software as a service, are not an agreement that has been “mutually executed” and will not replace, supplement or amend these Terms and Conditions in any way. Capitalized terms not defined herein will have meanings provided in the Order Form.
Online Documents. The following documents are incorporated into these Terms and Conditions as of the date of the Order Form: (i) the Twilio Country-Specific Terms available at https://www.twilio.com/legal/country-specific-terms (“Country-Specific Terms”); and (ii) the Twilio Supplier Code of Conduct available at https://www.twilio.com/legal/supplier-code-of-conduct (“Code of Conduct”), as they each may be updated by Twilio from time to time.
Delivery. Supplier will expediently perform its obligations under the Order Form. Delivery of Products and Services shall be strictly in accordance with the schedule set forth in the Order Form. Any delays in shipment shall be reported immediately by Supplier to Twilio. Twilio reserves the right to cancel the Order Form, in whole or in part, if Supplier fails to make deliveries in accordance with its terms. Supplier will preserve, pack, package, and handle the Products so as to protect the Products from loss or damage and in accordance with industry best practices. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous work, including, with respect to its accompanying information, packing, labeling, reporting, carriage, and disposal. Unless otherwise expressly agreed in writing or specified in an Order Form, all shipments shall be DDP (Incoterms 2010) to Twilio’s Ship To location specified in the Order Form. Notwithstanding any prior inspections, Supplier maintains/bears all risk of loss, damage, or destruction until acceptance of Products or Services by Twilio.
Payment. Twilio will pay Supplier the price set forth in the Order Form in accordance with the payment terms specified therein upon the occurrence of the later of: (i) the delivery date; (ii) the date of Twilio's acceptance of all Products or Services or any portion thereof; or (iii) Twilio's receipt of a properly prepared invoice. A properly prepared invoice must include the Order Form number and, if required in the Order Form, Supplier’s certification of conformance of the Products or Services to the requirements. Upon Twilio’s request, Supplier agrees to submit electronic invoices in accordance with Twilio’s electronic invoice and payment process, as notified to Supplier by Twilio from time to time. The amounts to be paid by Twilio to the Supplier do not include taxes. Twilio will pay or reimburse Supplier for sales, use, value added taxes or any similar transaction taxes it owes due to an Order Form and which the law requires Supplier to collect from Twilio. Twilio has no liability for any taxes based on Supplier’s assets or income or for which Twilio has an appropriate resale or other exemption. If Twilio is required by law to make any deduction or to withhold from any sum payable hereunder, then the sum payable by Twilio upon which the deduction is based shall be paid to Supplier net of such legally required deduction or withholding.
a. Definitions. “Intellectual Property” means all current and future copyrights, trademarks, trade names, logos, service marks, trade secrets, patents, utility models, design rights, know-how and applications, moral rights, database rights, contract rights, and other proprietary rights now or hereafter recognized by the laws of any jurisdiction or country, and any applications, registrations, reissues and renewals of the same, throughout the world. “Pre-Existing IP” means any Intellectual Property owned, created, developed, leased and/or licensed by a party prior to, outside of or independently from an Order Form. “Deliverable” means all Intellectual Property and other materials uniquely created or developed for Twilio under an Order Form; provided, however, none of the following are Deliverables: (i) hardware, software, SaaS, Services or Supplier Pre-Existing IP as provided to Twilio that have not been specifically customized for Twilio; or (ii) technology or Intellectual Property made available to Twilio as part of generally-available maintenance Services for a Product.
b. Ownership. Each party shall own its Pre-Existing IP. To the extent any Services contain any Deliverables, Twilio shall exclusively own Deliverables as of the date of their creation. Deliverables are “works made for hire” to the extent allowed by applicable law and all other Intellectual Property rights therein will be owned exclusively by Twilio. To the extent that any Deliverable is not considered a “work made for hire”, Supplier shall and hereby does irrevocably assign and transfer all of its right, title, and interest in and to the Deliverable, including all Intellectual Property therein, to Twilio. Supplier shall ensure that Supplier Personnel engaged under an Order Form shall comply with the requirements of this Section.
c. License to Pre-Existing IP. If and to the extent that any Pre-Existing IP or a portion thereof is incorporated in the Deliverables or is otherwise necessary for the use of the Deliverables, Supplier hereby grants to Twilio a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up license, with the right to sublicense through multiple tiers, to use, make, sell, distribute, execute, adapt, translate, reproduce, display, perform, modify, and create derivative works of Supplier’s Pre-Existing IP in connection with the Deliverables in which they are incorporated, and authorizes others to do any, some, or all of the foregoing.
Term and Termination. An Order Form is effective until all Products or Services under the Order Form have been accepted and paid for by Twilio. An Order Form for Products may be terminated or cancelled by Twilio, in whole or in part, for any reason immediately upon notice. An Order Form for Services and/or Deliverables may be terminated or cancelled by Twilio, in whole or in part, for convenience with thirty (30) days prior notice. An Order Form for Services and/or Deliverables may be terminated by Twilio, in whole or in part, effective as of the occurrence of Supplier’s curable breach if Supplier fails to cure the breach within thirty (30) days of notice of such breach from Twilio. An Order Form for Services and/or Deliverables may be terminated by Twilio, in whole or in part, immediately upon Supplier’s incurable breach. If Twilio terminates for convenience, its only obligation is to pay for Products, Services and/or Deliverables it accepts before the effective date of termination. Supplier may terminate an Order Form only based on Twilio’s material breach of an obligation under an Order Form and only after providing Twilio with thirty (30) days advance written notice and a reasonable opportunity to cure the breach.
Representations and Warranties.
a. Performance Warranties. Supplier warrants to Twilio and Twilio’s customers for the longer of Supplier’s normal warranty period or for one (1) year following the date of Twilio’s acceptance of the Products that: (i) when received by Twilio from Supplier, the Products will be free from defects in design, material, workmanship, and manufacture; (ii) the Products will conform to the applicable documentation; (iii) the Products will be suitable for the purposes for which they are intended including purposes made known to Supplier; and (iv) all Products will be new and unused and not refurbished, unless otherwise agreed to in writing by the parties. The foregoing warranties are in addition to all other warranties, whether express or implied, and will survive delivery, inspection, acceptance, or payment by Twilio.
b. General Warranties. Supplier represents and warrants that: (i) Supplier has all necessary rights of title to the Products and Services and has transferred all such rights and title to Twilio upon Twilio’s acceptance of the Products and Services; (ii) the Products and Services will be of professional quality and/or performed consistently with generally accepted industry standards; (iii) Supplier’s performance under the Order Form will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Supplier is bound; (iv) Supplier will comply with all applicable laws and regulations; (v) software will be free from any virus, malicious device, worm, Trojan, time bomb, or other harmful or destructive code; and (vi) the Deliverables will not contain any open source software licensed under the GNU General Public License, the GNU Lesser General Public License, or any other license that may require Twilio to make any of its source code publicly available.
c. Pass-Through Warranties. Supplier assigns and passes through to Twilio all of the third-party manufacturers’ and licensors’ warranties and indemnities for the Products.
d. Supplier Personnel. Supplier has conducted a criminal background check at its own expense on each employee, independent contractor, permitted subcontractor, vendor or agent performing Services or providing Products under an Order Form (collectively, “Supplier Personnel”). Subject to applicable law, Supplier Personnel shall not be eligible to perform Services for Twilio if he or she has: (i) been convicted of or was placed in a pre-trial diversion program for any crime involving dishonesty or breach of trust; and/or (ii) been convicted of any sex, weapons, or violent crime. Supplier is responsible for ensuring that all Supplier Personnel meet the licensing, security, labor, and site requirements for the locale where the Services are being performed.
e. Disclaimer. SUPPLIER DISCLAIMS AND TWILIO EXPRESSLY WAIVES ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Confidentiality. “Confidential Information” means any information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether in written, electronic, digital, or other form, that a reasonable person would understand to be confidential given the circumstances and content of the disclosure, whether or not designated as “confidential” or “proprietary,” including any written or printed documents, proposals, designs, concepts, raw data, employee information, drawings, ideas, inventions, specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, know-how, marketing plans, strategies, pricing, policies, samples and physical items, financial information, software, hardware and all information of any kind relating to either party, their respective shareholders and/or affiliates. For the avoidance of doubt, the Deliverables constitute Confidential Information of Twilio. Supplier agrees not to, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party, other than in Supplier’s assigned duties and for the benefit Twilio, any of Twilio’s Confidential Information, either during or after the term without Twilio’s prior written consent. Notwithstanding the foregoing, Confidential Information will not include any information which: (i) was or becomes publicly known through no action or inaction of Receiving Party; (ii) is already in the possession of Receiving Party at the time of disclosure as shown by credible evidence; (iii) is obtained by Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (iv) is independently developed by Receiving Party without use of or reference to Disclosing Party’s Confidential Information, as shown by credible evidence.
Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose except as solely required to perform its obligations pursuant to the Order Form. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to any third parties without Disclosing Party’s prior written consent. In the event that Receiving Party is required by law, or judicial, administrative, or other legal order to disclose any of the Disclosing Party’s Confidential Information, Receiving Party will first give written notice to Disclosing Party (if permitted by law) to allow Disclosing Party to obtain a protective order or otherwise protect its interests in the Confidential Information. In such cases, Receiving Party will provide full cooperation and assistance to Disclosing Party in seeking such protection, at Disclosing Party’s expense.
Indemnification. Supplier shall indemnify, defend, and hold harmless Twilio and its officers, directors, agents, employees, successors, and customers from and against any and all third party claims, liabilities, losses, damages, settlements, costs, and expenses (including attorneys’ fees) made against or sustained by Twilio arising from: (i) any negligent or willful acts or omissions of Supplier, which results in tangible or intangible property damage, personal injury or death; (ii) Supplier’s breach of its confidentiality, privacy or security obligations; (iii) actions by Supplier Personnel against Twilio for wages, fringe benefits, other compensation, or similar claims, and claims challenging Supplier’s right to dismiss Supplier Personnel; (iv) Supplier’s non-compliance with applicable law; and (v) any claim that the Products or Services infringe or misappropriate any third party Intellectual Property rights. If Twilio’s use of any of the Products or Services is enjoined or in Twilio’s reasonable opinion, is likely to be enjoined as a result of any such claim or allegation of Intellectual Property infringement, Supplier agrees, at Twilio’s option, to: (a) accept return of the Products or Services from Twilio and refund to Twilio the amounts paid by Twilio with respect to such Products and Services; (b) modify the Products or Services so that they become non-infringing but equivalent in functionality, quality, compatibility, and performance; or (c) procure for Twilio and its customers the right to continue using and distributing the Products and Services.
Insurance. Without limiting Supplier’s obligations hereunder, Supplier, at its own cost, shall procure, maintain, and keep in full force and effect insurance to protect Supplier and Twilio from all claims that arise out of or result from Supplier’s provision of Products or Services under an Order Form. Supplier’s insurance must include the following coverage (or the local currency equivalent) to the extent these Terms and Conditions or the applicable Order Form creates risks generally covered by these insurance policies: (i) Commercial General Liability of at least $1 million; (ii) Automobile Liability of at least $1 million; (iii) Statutory Workers’ Compensation; (iv) Professional Liability, as applicable, of at least $1 million; and (v) to the extent Twilio Data (as defined in the DPA) is processed under an Order Form, Cyber Liability of at least $1 million. Twilio may require Supplier to carry additional insurance limits and/or coverages. Supplier will provide Twilio documentation evidencing the required coverage within ten (10) business days of Twilio’s request.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR LIABILITY ARISING UNDER SECTION 8 (INDEMNIFICATION) OR SECTION 11 (PRIVACY AND DATA SECURITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES FOR ANY CAUSE WHATSOEVER IN AN AMOUNT IN EXCESS OF THE AMOUNTS PAID OR DUE TO SUPPLIER UNDER THE ORDER FORM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR LIABILITY ARISING OUT OF SUPPLIER’S BREACH OF SECTION 7 (CONFIDENTIALITY) HERETO, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES ARISING FROM ANY CLAIM OR ACTION HEREUNDER, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY.
Privacy and Data Security. To the extent that Twilio Data or Supplier Data (as each term is defined in the DPA) is processed under an Order Form, the parties will implement and maintain privacy and security measures to protect such data in accordance with Twilio’s current Supplier Data Protection Addendum available at https://www.twilio.com/legal/supplier-data-protection-addendum (the “DPA”), as it may be updated by Twilio from time to time.
Export and Import Compliance. Supplier shall mark the Products with the appropriate country of origin marking sufficient to satisfy the requirements of the customs authorities of the country of receipt to prove importation and to transfer duty drawback rights to Twilio. If any Products are imported, Supplier will, at Twilio’s request, either: (i) allow Twilio to be the importer of record; or (ii) provide Twilio with any documents required to prove importation and to transfer duty drawback rights to Twilio. Supplier acknowledges that the Products shipped, licensed, or sold under an Order Form, which may include technology and software, may be subject to the export control laws and regulations of the United States and other countries and Supplier agrees to abide by those laws and regulations.
Anti-Corruption Laws. Twilio advises Supplier that Twilio is subject to the US Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act (“UKBA”), as well as other global anti-corruption laws. These laws prohibit the payment or promise of payment of anything of value by Twilio or its subsidiaries or affiliates, either directly or indirectly, to the representative of a commercial entity or an official of a foreign government, foreign political party, party official, or candidate for foreign office, for the purpose of influencing any act or decision in their official capacity, or inducing that official to use their influence with a foreign government to assist Twilio or its subsidiaries or affiliates, in obtaining, retaining, or directing business to any person, or in securing any improper business advantage. Supplier agrees that it will not take any action which could cause Twilio to be in violation of the FCPA, UKBA or any other applicable anti-corruption law or regulation. Supplier will promptly notify Twilio if it becomes aware of any such violation. In case of breach of the above, Twilio may suspend or terminate any Order Form at any time without notice or liability.
Language. These Terms and Conditions are executed in English and may be translated into other language versions solely for reference by the parties. Any translated versions shall be nonbinding. In the event of any controversy between the parties respecting the interpretation or application of these Terms and Conditions or an Order Form, or if there is any inconsistency between the executed English version and the translation of such Terms and Conditions or Order Form, the English language version shall be controlling.
No Publicity; Use of Trademarks. Supplier shall not publicize or disclose the terms or existence of any Order Form, nor shall Supplier use or obtain any right or interest in the name(s), trademark(s), or tradename(s) of Twilio or its affiliates or subsidiaries. Upon Twilio’s prior written approval, Supplier shall only use Twilio’s marks, names and logo in accordance with Twilio’s usage guidelines set forth at https://www.twilio.com/brand. For the avoidance of doubt, Supplier shall not use Twilio marks in any way that is in breach of applicable laws (e.g., in connection to any offensive content), nor will it portray Twilio in any disparaging or negative way.
Government Contractor. Twilio is an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
Subcontractors. Supplier will not subcontract any Products or Services to other persons or entities without the prior written approval of Twilio. Supplier agrees to impose on its subcontractors the same obligations imposed upon Supplier under these Terms and Conditions. Supplier shall be responsible and liable for all acts of Supplier Personnel. Compensation for subcontracted services will be included in the fees and costs billed by Supplier.
Notices. All notices, permissions and approvals under an Order Form shall be in writing and shall be effective upon: (i) personal delivery; (ii) nationally (or internationally, if applicable) recognized overnight courier, with all fees prepaid; (iii) deposit with the relevant national postal service as certified mail, return receipt requested, postage prepaid; or (iv) electronically by email. Notices are deemed effective upon receipt or refusal of delivery. Notices of breach, termination or an indemnifiable claim may not be made by email. Notices to Twilio shall be addressed to (a) Twilio Inc., 101 Spear Street, Suite 500, San Francisco, CA 94105, Attn: Global Procurement Legal, firstname.lastname@example.org and (b) with a copy to the Twilio affiliate that is a party to the Order Form at the address set forth therein.
Order of Precedence. In the event of a conflict between these Terms and Conditions and any Order Form, the order of precedence shall be as follows: (i) these Terms and Conditions; and (ii) the Order Form. Notwithstanding the foregoing, the terms of an Order Form may prevail for purposes of that Order Form if: (a) the Order Form expressly identifies and supersedes or modifies a provision in these Terms and Condition; and (b) such Order Form is issued by, or signed by, Twilio. Depending on the Twilio affiliate that is a party to the Order Form, the Country-Specific Terms may apply, and to the extent the Country-Specific Terms apply, the Country-Specific Terms shall prevail over any conflicting terms in these Terms and Conditions.
Assignment. Supplier may not assign any of its rights or obligations under an Order Form, whether by operation of law or otherwise, without the prior written consent of Twilio. Any attempted delegation or assignment by Supplier without such consent shall be void.
Miscellaneous. The relationship of Supplier and Twilio is that of independent contractor. Except as provided herein, no term or condition of the Order Form may be amended or deemed to be waived, except by a writing signed by both parties. Except as set forth in the Country-Specific Terms, each Order Form will be construed in accordance with the laws of the State of California without regard to its principles of conflict of laws. Except as set forth in the Country-Specific Terms, the exclusive jurisdiction and venue of any action relating to an Order Form will be the state and/or federal courts located in San Francisco County and each of the parties hereto submits itself to the exclusive jurisdiction of such courts and waives any argument relating to the convenience of forum. The United Nations Conventions on Contracts for the International Sale of Goods is not applicable to any Order Form. The rights and remedies herein provided are in addition to those available to either party at law or in equity. Those provisions that by their nature are intended to survive termination or expiration of an Order Form shall survive.