These terms and conditions ("Terms and Conditions") together with a "Purchase Order" form an "Agreement" between Twilio Inc. or the Twilio subsidiary identified in the Purchase Order purchasing the goods and services herein ("Twilio") and the Supplier identified in the Purchase Order ("Supplier"). Supplier's electronic acceptance, receipt, and acknowledgement of the Purchase Order constitutes Supplier's acceptance of these Terms and Conditions. The Purchase Order may be revoked at any time prior to acceptance by either party. Notwithstanding the foregoing, if the parties enter or have entered into a master services agreement, purchase agreement, or any other definitive agreement ("Master Agreement"), covering procurement of any services ("Services") or commodities and/or goods described in the Purchase Order (collectively, "Products"), the terms of such Master Agreement shall prevail over any terms herein. In the event of conflicts between the Purchase Order and the Terms and Conditions, the Purchase Order will govern. Capitalized terms not defined herein will have meanings provided in the Purchase Order.
Delivery. Supplier will expediently perform its obligations under the Purchase Order. If Supplier delivers the Products after the date of delivery of Products ("Delivery Date"), Twilio may reject the Products. 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 a Purchase Order, delivery will be made to Twilio's Ship To location specified in the Purchase Order.
Payment. Twilio will pay Supplier the price set forth in the Purchase Order 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 any portion thereof; or (iii) Twilio's receipt of a properly prepared invoice. A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, Supplier's certification of conformance of the Services or Products to the requirements. In the event Twilio terminates the Services for convenience prior to completion of Services, Twilio shall pay Supplier the fees due under the Purchase Order. Unless otherwise specified therein, the prices within the Purchase Order are inclusive of all applicable tax.
Ownership. To the extent the Services contain any Deliverables as defined herein, Supplier agrees that Twilio is the sole and exclusive owner of all software (including modifications and documentation), products, inventions, designs, specifications, documents, writings, and other materials created, conceived, prepared, made, discovered, or produced by Supplier for Twilio pursuant to the Purchase Order (the "Deliverables"). Supplier irrevocably assigns and transfers to Twilio all of its worldwide right and title to, and interest in, the Deliverables, including all associated copyright, patent, trade secret, trademark, and any other intellectual property or proprietary rights ("Intellectual Property Rights"). Additionally, Supplier grants to Twilio a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, non-terminable, transferable, sublicensable license to all Intellectual Property Rights used in the creation of the Deliverables in order for Twilio to exercise its rights in the Deliverables as contemplated by the Purchase Order. Without limiting the foregoing, (i) the Deliverables are "works made for hire" to the extent permitted by law, and (ii) Supplier will not assert and otherwise waives, any “moral rights" in the Deliverables and assigns to Twilio all "moral rights" in the Deliverables. If for any reason such Deliverables are not works made for hire, Supplier hereby assigns all right, title, and interest in such materials to Twilio and agrees to assist Twilio, at Twilio's expense, to perfect such interest. To the extent Supplier is providing software under the Purchase Order other than as part of Deliverables, Supplier hereby grants to Twilio the right and license to use the software and any software documentation in accordance with the terms and conditions of the Purchase Order. The rights and licenses hereby granted are non-exclusive, royalty-free, worldwide, perpetual, transferable, and fully paid up upon Twilio’s payment of the Purchase Order Total.
Term and Termination. This Agreement is effective until all Products or Services under the Purchase Order have been accepted and paid for by Twilio. Twilio may terminate the Purchase Order at any time, for no reason or for any reason, upon ten (10) days written notice to Supplier. Either Twilio or Supplier may terminate the Purchase Order immediately upon written notice to the other party for any material breach. Twilio will have no further payment obligation in connection with the termination of this beyond the date of termination.
Representations and Warranties.
- 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 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.
- General Warranties. Supplier represents and warrants that: (i) Supplier has all necessary rights of title to the Products and has transferred all such rights and title to Twilio upon Twilio's acceptance of the Products; (ii) the Products will be of professional quality and/or performed consistently with generally accepted industry standards; (iii) Supplier's performance under the Purchase Order 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, including any applicable import and export employment and anti-bribery laws and regulations; (v) software will be free from any virus, malicious device, worm, Trojan, time bomb, or other harmful or destructive code.
- Representations. Supplier has conducted a criminal background check at its own expense on each employee, subcontractor, or agent performing Services or providing Products under this Agreement. Subject to applicable law, an employee, subcontractor, or agent of Supplier 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) convicted of any sex, weapons, or violent crime. Supplier shall abide by the applicable requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a). 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, or national origin. Moreover, these regulations require that Supplier, a subcontractor for purposes of this section is as defined in these regulations, and its subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
Confidentiality. 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 this Agreement. 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. Supplier will not issue any public statements or use Twilio’s trademarks or logo without express prior written consent from a senior member of Twilio’s Public Relations or Communications Department.
"Confidential Information" is 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: (a) was or becomes publicly known through no action or inaction of Receiving Party; (b) is already in the possession of Receiving Party at the time of disclosure as shown by credible evidence; (c) is obtained by Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (d) is independently developed by Receiving Party without use of or reference to Disclosing Party’s Confidential Information, as shown by credible evidence.
Indemnification. Supplier will indemnify, defend, and hold Twilio and its officers, directors, agents, employees, successors, and customers harmless against any and all claims, liabilities, losses, damages, settlements, costs, and expenses (including attorneys' fees) made against or sustained by Twilio arising from: (i) any property damage, personal injury or death related to the Products; (ii) all loss, liability, and damages arising from or caused directly or indirectly by any act or omission of Supplier, Supplier's agents, employees, or subcontractors; (iii) any breach of this Agreement by Supplier or anyone acting on Supplier's behalf; (iv) royalty-claims, liens, or any other encumbrances on the Products or Services provided hereunder; (v) any claim that the Products infringe or misappropriate any third party Intellectual Property Rights. If Twilio's use of any of the Products 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 from Twilio and refund to Twilio the amounts paid by Twilio with respect to such Products; (b) modify the Products 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.
Insurance. Supplier will secure and maintain insurance against general liability and property damage. Supplier will also maintain workers’ compensation insurance as required by law, including employer’s liability coverage. Supplier shall, at its own expense, maintain insurance throughout the term of the Agreement. Twilio may require suppliers 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. The insurance carrier must be rated A-VII or better by A.M. Best Company.
Limitation of Liability. TWILIO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, AND TWILIO’S MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO SUPPLIER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
Miscellaneous. The relationship of Supplier and Twilio is that of independent contractor. Except as provided herein, no term or condition of the Purchase Order may be amended or deemed to be waived, except by a writing signed by both parties. No right or obligation under the Purchase Order (including the right to receive monies due) may be assigned, delegated or subcontracted, except to a subsidiary or affiliate, by either party without prior written consent of the other and any purported assignment without such consent will be void. This Agreement will be construed in accordance with the laws of the State of California without regard to its principles of conflict of laws. The exclusive jurisdiction and venue of any action relating to this Agreement 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 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 this Agreement shall survive.