In these Partner Terms of Service (hereafter the “PTOS” or the “Partner Terms”), “we,”“us,”“our” or “Twilio” will refer collectively to Twilio Inc., 375 Beale Street, Suite 300, San Francisco, CA 94105 and its Affiliates. The terms “Partner”,“you,” and “your” will refer to you.
Twilio provides its Twilio Build program (“Partner Program”) and associated Services (defined below) subject to these Partner Terms. When we refer to Partner Services, this includes both our Services and the additional materials and services that are specific to Twilio’s Partner Program, including access to the Build Community (the “Community”).
To enroll in the Twilio Partner Program either on behalf of yourself or your organization, Partner must review and then accept these Partner Terms by checking the box indicating acceptance. If you are enrolling in the Partner Program on behalf of an organization, then you are agreeing to these Partner Terms for that organization and promising to Twilio that Partner has the authority to bind that organization to these Partner Terms (in which case, the terms “you” and “your” will refer to that organization).
PLEASE REVIEW THESE PARTNER TERMS CAREFULLY. ONCE ACCEPTED, THESE PARTNER TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND TWILIO. IF YOU DO NOT AGREE TO BE BOUND BY THESE PARTNER TERMS, YOU SHOULD NOT CHECK THE ACCEPTANCE BOX.
“Acceptable Use Policy” means certain terms and conditions relating to the use of the Services available at https://www.twilio.com/legal/aup.
“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
“Beta Offerings” means Services that are identified as alpha, beta, not generally available, limited release, developer preview, or any similar Services offered by Twilio.
“Customer Application” means any software application or service that an End Customer makes available through, or creates, using developer tools provided by Twilio or that interfaces with the Services.any software application or service that an End Customer makes available to End Users that interfaces with the Services.
“Documentation” means the then-current version of Twilio’s documentation, including any usage guides and policies, for the Services available at https://www.twilio.com/docs.
“EndCustomer” means a customer of a Partner who uses the Services either (i) directly through a resale or referral by a Partner or (ii) indirectly via a Partner Solution.
“End Customer Data” means any data and other information made available by or for the End Customer, to Twilio, and/or Partner through the End Customer’s use of the Services under these Partner Terms.
“End User” means any user of each End Customer Application.When we refer to an “End User” we mean anyone who has access to or otherwise accesses any Customer Application.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document between Partner, as applicable, and Twilio (or any of their Affiliates) that specifies mutually agreed upon rates for certain Services and other commercial terms, including any applicable minimum spend commitments.
“Partner Services” means Twilio’s Services together with the associated Partner Program materials and services that Partner receives as part of the Partner Program policies set forth at https://showcase.twilio.com/s/program-policies.
“Partner Data” means data and other information made available by or for Partner, to Twilio, through Partner’s use of the Services under these Partner Terms.
“Services” means the products and services that are ordered by Partner under an Order Form, or provided by Twilio to Partner on a trial basis or otherwise free of charge. Services may include products and services that provide both (a) the platform services, including access to any application programming interface (“Twilio API”) and (b) where applicable, connectivity services, that link the Services to the telecommunication providers’ networks via the Internet. Twilio may make available other program offerings and services from time to time under additional terms, subject to the Partner meeting the application qualification criteria.
“Service Data” means any data, in anonymized or aggregated form that does not identify Customer, End Users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services.
"Short Code” means an abbreviated phone number that is 5 or 6 digits in length that is used to send SMS and MMS messages.
“Support Terms” means the terms of support for the Services available at https://www.twilio.com/support-plans.
“Twilio Acceptable Use Policy” or “AUP” means certain terms and conditions relating to the use of the Services available at https://www.twilio.com/legal/aup.
“TwilioSecurity Overview” means the security related terms applicable to the Services available at https://www.twilio.com/legal/security-overview.
“Twilio SLA” means the service level agreement available at https://www.twilio.com/legal/service-level-agreement.
“Twilio Terms of Service” means the Twilio Terms of Service available at http://www.twilio.com/legal/tos, as may be updated from time to time.
1. Changes to The Partner Terms
Twilio may update these Partner Terms from time to time upon reasonable notice, which may be provided via Partner’s account, e-mail or by posting an updated version of these Partner Terms at https://www.twilio.com/legal/. The updated version of these Partner Terms will supersede all prior versions, and will become effective on the date given in those updated Partner Terms.
Following such notice, your continued use of the Services and participation in the Partner Program constitutes Partner's acceptance of such updates. If you do not agree to such updates, you should stop your use of the Services and participation in the Partner Program.
Exceptions: Twilio may not be able to provide prior written notice of updates to these Partner Terms that result from changes in the law or requirements from telecommunications providers.
Service & Country Specific Requirements. Additional requirements for specific Services, including any country specific requirements, are set forth at https://www.twilio.com/legal/service-country-specific-terms and apply solely to the extent Partner’s End Customers and its End Users use those specific Services.
2. Enrollment in the Partner Program
2.1 Application and Enrollment. You may apply to join the Partner Program by completing the application at https://www.twilio.com/partner-solutions/become-a-partner. You must satisfy Twilio’s qualifications and requirements in order to be approved, and you must comply with both these Partner Terms and the Partner Program Policies at https://www.twilio.com/legal/tos on an ongoing basis. Twilio offers different partner classifications. Twilio may require Partners to enter additional terms and conditions that apply to different partner classifications.
2.2 Publicity. Twillio will notify you in writing if you are approved to participate in the Partner Program. Until you receive this notification, you may not represent yourself as a Twilio Partner. In addition, once you are approved, you may not issue any press releases or other public statements regarding your status as a Partner or your participation in the Build Community without Twilio’s prior written consent.
2.3 Affiliates.Partner’s Affiliates are not permitted to participate in this Program or use the Services under these Partner Terms. Each of your Affiliates that wants to participate in the Partner Program must accept these Terms individually and create its own account.
3.Partner Rights, Responsibilities, and Restrictions
3.1 Provision of the Services. Twilio will: (a) make the Services available to Partner or, as applicable, the End Customers pursuant to these Partner Terms, the Documentation and any applicable Order Forms; (b) comply with the Twilio SLA; (c) comply with the security terms for the Services as set forth in the Twilio Security Overview; (d) provide the Services in accordance with laws applicable to Twilio’s provision of the Services to its Partners generally (i.e., without regard for Partner or the End Customers’ particular use of the Services), and subject to Partner’s and the End Customer and the End Users’ use of the Services in accordance with these Partner Terms, the Documentation and any applicable Order Form; (e) make commercially reasonable efforts to use industry standard measures designed to scan, detect and delete Malicious Code; (f) if applicable, use trained, qualified personnel to provide the Services; and (g) use commercially reasonable efforts to provide Partner with applicable support for the Services as described in the Support Terms.
3.2 Partner Responsibilities. Partner will: (a) be solely responsible for all use (whether or not authorized) of the Services and Documentation under its account, including for the quality and integrity of End Customer Data and each End Customer Application and/or Partner Solution; (b) use, provide and resell Services only in accordance with these Partner Terms, the Acceptable Use Policy, Documentation, Order Forms or other applicable terms related to the use of the Services, and applicable laws; (c) be solely responsible for all acts, omissions and activities of its End Customers, including their compliance with these Partner Terms, Documentation, the Acceptable Use Policy, and any Order Forms or other terms of sales of the Services as mutually agreed to by the parties in writing; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Twilio promptly of any such unauthorized access or use; (e) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; (f) at its sole cost and expense, obtain all permits, licenses and registrations necessary in connection with its performance of these Partner Terms and manage the same on behalf of End Customers, as required by applicable law; (g) not attempt to reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code of the Services or related software; (h) ensure Twilio is provided with accurate and up-to-date information as required to provide the Services, including for the provisioning of phone numbers; (i) escalate any End Customer requests for credits under the Twilio SLA to Twilio for review and ensure any credits are properly applied to End Customer’s account; (j) comply with the representations and warranties set forth in Section 9 (Representations, Warranties, and Disclaimers) below; (k) where Twilio has authorized Partner to resell Services, diligently market, promote, advertise, and provide access to the Software and maintain a staff of personnel with reasonable knowledge of Twilio and the Services; and (l) not engage in any deceptive, misleading, illegal or unethical marketing activities that may be detrimental to the Twilio brand.
3.3 Requirements for End Customer Terms. Partner shall ensure that before an End Customer accesses the Services, the End Customer has either accepted the Twilio Terms of Service online (the “Customer TOS”) or that the End Customer has entered an agreement with Partner with terms and conditions as protective of Twilio as the Customer TOS (the “End Customer Terms”). Partner will indemnify Twilio for any differences between the Customer TOS and the End Customer Terms. Partner will ensure that the End Customer has no rights to sue Twilio , and that Twilio is a third party beneficiary under the End Customer Terms. Partner shall not enter into agreements with End Customers that attempt to bind Twilio to additional terms and conditions, or that either restrict Twilio’s rights as a third party beneficiary or expand Twilio’s obligations to Partner and/or End Customer, without Twilio’s prior written consent. For example, Partner is prohibited from agreeing to (i) provisions that would extend Twilio’s liability beyond the limitation of liability contained in these Partner Terms; or (ii) provisions that would add security or data privacy requirements on behalf of Twilio, or that would restrict Twilio’s ability to block or suspend Services of an End Customer as more fully described in the TOS. In the event that an End Customer breaches the Customer TOS or End Customer Terms, Partner will immediately notify Twilio and will take whatever action Twilio directs to address the breach (which may include terminating the relationship with the End Customer).
3.4 Marketing. Twilio hereby grants to Partner a non-exclusive, non-transferable, and non-assignable, revocable right to use Twilio’s Marks (as defined below) solely as reasonably necessary for Partner to perform its obligations under these Partner Terms. “Marks” means all trademarks, service marks, trade names, logos, or other words or symbols associated with the Services or Twilio’s business with respect to the Services. Partner will use the Twilio Marks exactly in the format provided and in accordance with any trademark usage authorizations granted by Twilio pursuant to https://www.twilio.com/legal/logo-use. Twilio may, from time to time, specify any uses of the Twilio Marks that are no longer permitted.
3.5 Partner Restrictions. Partner is not authorized to: (a) appoint any agents, dealers, sub-Partners, representatives, subcontractors, and/or other third parties to advertise, promote, resell, transfer or distribute the Services, unless Partner and Twilio agree otherwise in writing; (b) resell the Services to contact or allow End Customers to contact an official government-sponsored emergency telephone number (such as 911 in North America or 112 in the European Union and other locations worldwide) which is used to dispatch professional emergency responders (“Emergency Services”), unless the Service is expressly identified as approved for Emergency Services at https://www.twilio.com/legal/emergency-services, and unless the End Customer agrees to use those Services strictly in accordance with the Emergency Services Addendum available at that link or enters such other agreement as Twilio deems appropriate; and (c) will not directly use and will not allow End Customers to use the Services in any manner that violates the Acceptable Use Policy or any applicable law.
3.6 Changes to the Services. Partner acknowledges that the features and functions of the Services may change over time; provided, however Twilio will not materially decrease the overall functionality of the Services. It is Partner’s responsibility to ensure each End Customer Application is compatible with the Services. Although Twilio endeavors to avoid changes to the Twilio APIs that are not backwards compatible, if any such changes become necessary, Twilio will use commercially reasonable efforts to notify Partner at least sixty (60) days prior to implementation. In the event that Twilio makes a non-backwards compatible change to a Twilio API and such change materially and negatively impacts Partner and/or End Customer’s use of the Services (“Adverse API Change”), then (a) Partner shall notify Twilio of the Adverse API Change and (b) Twilio may agree to work with the Partner and/or End Customer to resolve or otherwise address the Adverse API Change, except where Twilio in its sole discretion has determined that an Adverse API Change is required for security reasons, by telecommunications providers or to comply with applicable law or regulations.
3.7 Professional Services. Partner may be authorized to sell Professional Services for implementation or integration or ongoing maintenance and support (combined, the “Professional Services”), which shall be described in a separate, mutually agreed upon and signed appendix with Twilio. Partner will perform Professional Services for implementation to End Customers in connection with a valid Statement of Work (“SOW”) that has been executed by an authorized representative of each party. Each SOW shall identify the technical requirements for the implementation and any additional or different payment terms. Partner shall similarly execute a separate statement of work with End Customer that aligns with End Customer’s instructions and requirements.
3.9 Reservation of Rights. All rights not specifically granted by Twilio hereunder are reserved by Twilio.
4. Additional Product and Services
4.1 Add-Ons. Twilio may make available through the Twilio Marketplace additional features, functionality, and services (each an “Add-On”) offered by third-party partners (each an “Add-On Provider"). Twilio will provide such Add-Ons pursuant to the terms available at https://www.twilio.com/legal/add-ons. If an End Customer chooses to use an Add-On, then if Partner, at its sole discretion, decides to purchase any Add-Ons, Partner will be required to accept the Add-On Provider’s terms of service. Partner may not provide an Add-On as a standalone option to its End Customers or resell Add-Ons to others.
4.2 Provision of Short Codes; Phone Number Porting. Twilio may provide phone numbers and short codes to Partner and/or Partner’s End Customers pursuant to the terms available at https://www.twilio.com/legal/phone-numbers and https://www.twilio.com/legal/short-codes.
5. Ownership, Use of Partner and End Customer Data, and Confidentiality
5.1 Ownership Rights.
(a) Twilio Property. As between the parties, Twilio exclusively owns and reserves all right, title and interest in and to the Services, Documentation, Twilio’s Confidential Information, and Service Data.
(b) Partner Property. Partner exclusively owns and reserves all right, title and interest to the Partner Solution, Partner Data, and Partner’s Confidential Information.
(c) End Customer Property. End Customer exclusively owns and reserves all right, title and interest in and to the End Customer Applications and End Customer Data.
5.2 Feedback. Partner, End Customer and End Users may provide recommendations, suggestions, improvement or correction requests, comments or other feedback (collectively, “Feedback”) to Twilio. Partner grants Twilio a worldwide perpetual, irrevocable, royalty-free license to use, exploit and incorporate such Feedback into the Services. Please know, however, that (a) Feedback will not be treated as your Confidential Information or as End Customer Confidential Information; (b) Twilio may use or disclose, or choose not to use or disclose, Feedback for any purpose and in any way; (c) you and any End Customer are not entitled to any compensation or reimbursement of any kind from Twilio under any circumstances for Feedback.
5.6.1 Definition. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including, without limitation, these Partner Terms, any Order Forms, Customer Data, the Documentation, security reports and attestations, audit reports, customer lists, pricing, phone numbers, concepts, processes, plans, designs and other strategies, “know how”, financial, and other business and/or technical information and materials of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (i) is publicly available through no breach of these Partner Terms or fault of Receiving Party; (ii) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (iii) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without violation of Disclosing Party's rights; or (iv) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.
5.6.2 Use and Disclosure. Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not (i) use any Confidential Information of Disclosing Party for any purpose outside the scope of these Partner Terms and (ii) disclose or make Confidential Information of Disclosing Party available to any party, except to its, its Affiliates’, and their respective employees, legal counsel, accountants, contractors, and in Twilio’s case, subcontractors (collectively, “Representatives”) who have a “need to know” in order to carry out the purpose of these Partner Terms. Receiving Party is responsible for its Representatives’ compliance with this Section 5.6. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 5.6. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care. Notwithstanding the foregoing, Customer may disclose to its End Users Twilio’s SOC2 or similar report, which will constitute Twilio’s Confidential Information, only to an End User's employee or contract worker who has a “need to know” for such Confidential Information and is legally bound to terms of confidentiality that are at least as protective as the terms of this Section 5.6.
5.6.3 Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). Disclosing Party will cover Receiving Party's reasonable legal fees for preparation of witnesses, deposition, and testimony to the extent such Compelled Disclosure is in connection with a lawsuit or legal proceeding to which Disclosing Party is a party or to the extent fees are incurred in connection with reasonable assistance provided to Disclosing Party in connection with Disclosing Party's efforts to contest such Compelled Disclosure.
5.6.4 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 5.6 and that, in the event of an actual or threatened breach of the provisions of this Section 5.6, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
6. Building Regulated Services. Twilio offers both non-interconnected and interconnected VoIP products. If Partner purchases an interconnected VoIP product for Partner’s use or use by an End Customer, Partner is responsible, just like Twilio, to comply with the regulatory requirements, taxes, and fees imposed on interconnected VoIP services. If Partner purchases a non-interconnected VoIP product or service from Twilio, it is still possible for Partner or the End Customer to build an interconnected VoIP service with Twilio's non-interconnected VoIP product. If Partner builds an interconnected VoIP service (regardless of which Twilio product is purchased), Partner and, as applicable its End Customer, will be responsible to comply with the regulatory requirements, taxes, and fees imposed on interconnected VoIP services.
7. Product Terms. Refer to www.twilio.com/legal for terms that apply to certain features and functionality of our Services.
8. Fees, Taxes, and Payment Terms
8.1 Fees. Partner agrees to pay fees in accordance with the rates listed at https://www.twilio.com/pricing, unless otherwise set forth in an order form or order confirmation between the parties (an “Order Form”). Additionally, we will charge Partner, and Partner shall pay, in accordance with Section 8.3 (Payment Terms), any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunication provider as a result of Partner's or the End Customer’s use of the Services.
8.2 Taxes and Communications Surcharges
8.2.1 Taxes. All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). Partner will pay all Taxes associated with these Partner Terms, excluding any taxes based on Twilio’s net income, property, or employees. If Partner is required by applicable law to withhold any Taxes from payments owed to Twilio, Partner will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by Twilio. Partner will provide Twilio with proof of payment of any withheld Taxes to the appropriate authority.
8.2.2 Communications Surcharges. All fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges (collectively, “Communications Surcharges”), Partner will pay all Communications Surcharges associated with Partner’s use, as well as its End Customer’s use, of the Services.
8.2.3 Exemption. If Partner is exempt from paying certain Taxes or Communications Surcharges, Partner will provide the necessary exemption information as requested by Twilio or a valid exemption certificate issued by the appropriate authority via email to email@example.com. Partner will be exempt on a going-forward basis once Twilio has approved Partner’s exemption request. If the appropriate authority determines, at any time, that Partner is not exempt from paying any Taxes or Communications Surcharges, Partner will promptly pay such Taxes or Communications Surcharges to Twilio, plus any applicable interest or penalties.
8.3 Payment Terms.
8.3.1 Credit Card. If Partner elects to pay via credit card, then Partner is responsible for either (a) enabling auto-recharge on Partner’s account or (b) ensuring that Partner’s account has a sufficient positive balance to cover all fees due. If, for any reason, Partner has a negative balance or Partner’s credit card declines a charge for fees due, Twilio reserves the right to suspend the provision of the Services to all of Partner’s accounts. Partner is prohibited from creating new accounts until all negative balances are paid in full.
8.3.2 Invoicing. If Partner elects to receive invoices and pay in arrears and we approve you for the same, then invoices will be sent to you via email as a PDF on a monthly basis. Partner will make all of the undisputed fees hereunder within thirty (30) days of the date of the invoice. Unless you and Twilio agree otherwise in writing, all undisputed fees due pursuant to these Terms are payable in United States dollars, unless otherwise agreed to between the parties in writing. Payment obligations can’t be canceled, and fees paid are non-refundable. If you are overdue on any payment of undisputed fees and fail to pay within ten (10) business days of a written notice of your overdue payment, then we may assess, and you must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by applicable law, whichever is less. Following the notice of non-payment, we may also suspend the Services until you pay the undisputed fees due plus any late fees.
8.4 Payment Disputes. Partner will notify Twilio in writing in the event Partner disputes any fees, Taxes, or Communications Surcharges paid or payable by Partner under these Partner Terms. Where Partnerer is disputing any fees Taxes, or Communications Surcharges, Partner must act reasonably and in good faith and will cooperate diligently with Twilio to resolve the dispute. Partner will provide such notice to Twilio within sixty (60) days of the date Twilio bills Partner for such fees, Taxes, or Communications Surcharges due that are in dispute and the parties will work together to resolve the dispute promptly.
8.5 Audit. During the term of these Partner Terms and for a period of twelve (12) months following termination or expiration of these Partner Terms, Twilio or its authorized representative shall have the right to audit Partner's books and records to verify the accuracy of reports and ensure Partner has paid Twilio all fees entitled to it, provided that such audit shall be conducted (i) no more than once per calendar year, (ii) during Partner's regular business hours, and (iii) upon reasonable prior written notice. Twilio shall conduct the audit at its own expense, unless it is revealed that fees were underpaid by more than five percent (5%) during the audit period, in which case, Partner will reimburse Twilio for reasonable fees incurred for the audit in addition to such unpaid fees.
9. Representations, Warranties, and Disclaimers
9.1 Power and Authority Representation. Each party represents and warrants that it has validly entered into these Partner Terms and has the legal power to do so.
9.2 Export Controls. Each party will comply with export control and economic sanctions laws in all applicable jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States of America. Partner will obtain all licenses or other authorizations required to export, re-export, or transfer the Services. Each party represents that it (and in the case of Partner, also its End Customers) is not on any government prohibited/denied/unverified-party, sanctions, debarment, or exclusion list (collectively, “Sanctions Lists”). Neither Partner nor any End Customer will export, re-export, or transfer the Services to an entity on any Sanctions List without prior U.S. government or other required government authorization. Partner will (a) immediately discontinue its use of the Services if Partner becomes placed on any Sanctions List and (b) remove an End Customer’s access to the Services if such End Customer becomes placed on any Sanctions List.
9.3 Consents and Permissions. Partner represents and warrants that it has provided and will continue to provide adequate notices, and has obtained and will continue to obtain the necessary permissions and consents to provide End Customer Data to Twilio for use and disclosure pursuant to Section 5.4 (Use of Partner Data and End Customer Data).
9.4 Performance of Services. Twilio represents and warrants that the Services perform materially in accordance with the applicable Documentation. For any breach of this warranty, Partner's exclusive remedy will be, at Twilio’s option, re-perform the affected Services or refund to Partner the fees Partner actually paid for the affected Services.
9.5 Disclaimer. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. TWILIO ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO THIRD PARTY TELECOMMUNICATIONS PROVIDERS. BETA OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES AND TWILIO WILL HAVE NO LIABILITY AND NO OBLIGATION TO INDEMNIFY FOR ANY BETA OFFERING WHATSOEVER.
10. Mutual Indemnification
10.1 Indemnification by Twilio. Twilio will defend Partner and Partner’s directors, officers, employees, and Affiliates (collectively, “Partner Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a Partner Indemnified Party by a third party alleging that Twilio’s provision of the Services infringes or misappropriates such third party’s intellectual property rights (“Twilio Indemnifiable Claim”). Twilio will indemnify Partner from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against Partner Indemnified Parties or for settlement amounts approved by Twilio for a Twilio Indemnifiable Claim.
10.2 Infringement Options. If the use of the Services by Partner has become, or in Twilio’s opinion is likely to become, the subject of any Twilio Indemnifiable Claim for third-party intellectual property rights infringement or misappropriation, Twilio may at its option and expense: (i) procure for Partner the right to continue using the Services as set forth herein; (ii) modify the Services to make them non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate these Partner Terms, or, if applicable, terminate the Services that are the subject of any Twilio Indemnifiable Claim for third-party intellectual property rights infringement or misappropriation, and refund Partner any unused pre-paid fees.
10.3 Limitations. Twilio will have no liability or obligation under this Section 10 with respect to any Twilio Indemnifiable Claim arising out of (i) the use of the Services by Partner in breach of these Partner Terms; (ii) the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or (iii) Services for which there is no charge.
10.4 Indemnification by Partner. Partner will defend Twilio and Twilio’s directors, officers, employees, and Affiliates (collectively, “Twilio Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a Twilio Indemnified Party by a third party alleging or arising out of: (a) Partner's or any of breach of Section 3 (Partner Rights, Responsibilities, and Restrictions), (b) a Partner Solution, including, without limitation, any claims that a Partner Solution or Partner’s or its End Customer’s use of a Partner Solution infringes or misappropriates such third party’s intellectual property rights, or (c) an End Customer’s violation of the End Customer Terms (collectively, “Partner Indemnifiable Claims”). Partner will indemnify Twilio from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against Twilio Indemnified Parties or for settlement amounts approved by Partner for a Partner Indemnifiable Claim.
10.5 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Partner Indemnifiable Claim or Twilio Indemnifiable Claim (individually or collectively referred to herein as a “Claim”); provided, however, that the failure to give prompt notice will not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole authority to defend or settle any such Claim; and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify under this Section 10 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.
10.6 Exclusive Remedy. This Section 10 states the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy against, the other party for any third party claims.
11. Limitation of Liability
11.1 Limitation on Indirect, Consequential, and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.2 Limitation of Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
11.3 Unlimited Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 11.2 (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 11.1 AND SECTION 11.2 DO NOT APPLY TO (a) PARTNER’S BREACH OF SECTION 3.2 (PARTNER RESPONSIBILITIES); (b) PARTNER’S AND ITS AFFILIATES’ BREACH OF SECTION 8 (FEES, PAYMENT TERMS, AND TAXES); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (MUTUAL INDEMNIFICATION).
12. Term; Suspension and Termination
12.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by Partner and continue until terminated in accordance with the provisions below (“Term”).
12.2 Termination for Convenience. Twilio may terminate these Partner Terms at any time, with or without cause, upon thirty (30) days written notice to Partner.
12.3 Material Breach. Either party may terminate these Partner Terms in the event the other party commits any material breach of these Partner Terms and fails to remedy such breach within ten (10) days after written notice of such breach. If Twilio terminates the PTOS because of Partner’s material breach, then Twilio will also close Partner’s Twilio account.
12.4 Insolvency. Subject to applicable Law, Twilio may terminate these Partner Terms immediately by providing notice to Partner upon Partner’s liquidation, commencement of dissolution proceedings, disposal or transfer to a custodian (as defined in Chapter 11 of the United States Bankruptcy Code) of all or substantially all of Partner’s assets, a failure to continue business, assignment for the benefit of creditors, or if Partner becomes the subject of bankruptcy or similar proceeding.
12.5 Blocking or Suspending Services. Twilio has the right to block access to an account or suspend Services (either in whole or in part) in accordance with the TOS or equivalent terms in the End User Customer Agreement, or in the event of nonpayment by Partner. If we block or suspend the Services then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Partner may incur in connection with any such blocking or suspension.
13. Survival. Upon termination of these Partner Terms, Partner's payment obligations, the terms of this Section 13, and the terms of the following Sections will continue to apply: Section 5 (Ownership, Use of Partner and End Customer Data, and Confidentiality), Section 8 (Fees, Taxes, and Payment Terms), Section 10 (Mutual Indemnification), Section 11 (Limitation of Liability), Section 14 (General), and Section 15 (Dispute Resolution).
14.1 Compliance with Laws. Partner will comply with the applicable law relating to Partner's activities pursuant to these Partner Terms. Twilio will provide the Services in accordance with laws applicable to Twilio’s provision of the Services to its customers generally (namely without regard for Partner's or an End Customer’s use of the Services), and subject to Partner's, End Customer’s and/or End User’s use of the Services in accordance with these Partner Terms, the Documentation, and applicable Order Form (if any).
14.2 Assignment. Neither party hereto may assign or otherwise transfer these Partner Terms, in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either party may assign these Partner Terms, in whole in part, without consent to (a) a successor to all or substantially all of its assets or business or (b) an Affiliate. Any attempted assignment, delegation, or transfer by either party in violation hereof will be void. Subject to the foregoing, these Partner Terms will be binding on the parties and their respective successors and permitted assigns.
14.3 Relationship. Partner and Twilio are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Partner and Twilio will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. Partner and Twilio will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither Partner nor Twilio has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so.
14.4 No Third Party Beneficiaries. These Partner Terms do not confer any benefits on any third party (including any End User or Affiliate) unless it expressly states that it does.
14.5 Notices. Any notice required or permitted to be given hereunder will be given in writing to the other party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email. Billing-related notices to End Customer will be addressed to the relevant billing contact designated by End Customer in its account. Notices to Twilio will be copied to firstname.lastname@example.org, Attention: General Counsel.
14.6 Governing Law and Venue. These Terms will be governed by and interpreted according to the laws of the State of California without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 15 (Dispute Resolution), any legal suit, action or proceeding arising out of or related to these Terms or the Services will be instituted in either the state or federal courts of San Francisco, California, and the parties hereby consent to the personal jurisdiction of these courts. In the event of any adjudication of any dispute under these Partner Terms, the prevailing party in such action will be entitled to reimbursement of its attorneys’ fees and related costs by the non-prevailing party.
14.7 Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; pandemic,flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
14.8 Waiver; Order of Precedence. No failure or delay by either party in exercising any right under these Partner Terms will constitute a waiver of that right. Titles and headings of sections of these Partner Terms are for convenience only and will not affect the construction of any provision of these Partner Terms. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) these Partner Terms, (3) the AUP, and (4) the applicable Documentation.
14.9 Severability. In the event that any provision of these Partner Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of these Partner Terms will continue in full force and effect.
14.10 Counterparts. These Partner Terms may be executed in multiple counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via electronic mail (including .pdf or electronic signature) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
14.11 Entire Agreement. These Partner Terms (including all exhibits and attachments hereto) will constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, whether oral or written. No oral or written information or advice given by Twilio, its agents or employees will create a warranty or in any way increase the scope of the warranties or obligations in these Partner Terms. The parties agree that any term or condition stated in Partner’s registration form or registration portal or in any Partner purchase order document or similar document will be construed solely as evidence of Partner’s internal business processes and the terms and conditions contained therein will be void and have no effect with regard to these Partner Terms even if signed by the parties after the Effective Date.
15. Dispute Resolution.
15.1Informal Dispute Resolution. In the event of a dispute, claim, or controversy arising out of or in connection with these Partner Terms or the breach termination, enforcement, interpretation or validity thereof (other than for claims or disputes related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives will engage in good faith negotiations with the other party’s senior representatives to amicably resolve a Dispute. If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree in writing, then the parties may commence alternative dispute resolution or litigation proceedings.
15.2 Agreement to Arbitrate. If a dispute cannot be resolved under Section 15.1, Partner and Twilio agree to resolve any dispute relating to these Partner Terms or in relation to the Services by binding arbitration in San Francisco, California. This applies to all claims under any legal theory, unless the claim fits in one of the exceptions below in Section 15.3. It also applies even after Partner has ended its participation in the Partner Program. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that too. Pursuant to this Section 15.2, you understand that Partner and its Affiliates and Twilio and its Affiliates are giving up the right to have a judge and/or jury resolve any controversy or claim arising out of or relating to these Partner Terms or the Services.
15.3 Exceptions to Agreement to Arbitrate. Partner and its Affiliates on one hand, and Twilio and its Affiliates on the other hand, agree that we will go to court to resolve disputes relating to:
a. Partner’s, its Affiliates’, Twilio’s or Twilio’s Affiliates’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or
b. Partner’s violation of the Acceptable Use Policy.
In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.