PLEASE REVIEW THESE TERMS CAREFULLY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND TWILIO. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT USE THE SERVICES.
When we refer to the “Twilio API” we mean an application programming interface for the Services (or feature of the Services) provided to you by us.
When we refer to the “Services” in these Terms, we mean those services provided to you by Twilio in connection with the services you may have purchased from salesforce.com, inc. (“SFDC”).
When we refer to the “Documentation” we mean all of the Twilio API instruction manuals and guides, code samples, manuals, guides, on-line help files and technical documentation made publicly available by us for the Services, and as may be updated from time to time. There is a special subset of the Documentation that we have named the “APS Documentation.” This is available at www.twilio.com/legal and consists of our Acceptable Use Policy, terms that are specific to certain products (namely what we may refer to as “product specific terms” and our Security Overview at www.twilio.com/legal/security-overview.
IMPORTANT NOTE: THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 13.
IN ADDITION, DISPUTES RELATED TO TERMS OR RELATED TO YOUR USE OF THE SERVICES GENERALLY MUST BE RESOLVED BY A DISPUTE RESOLUTION PROCESS WHICH MAY LEAD TO BINDING ARBITRATION. For more details, go to Section 17.
If you have any questions, you can reach Twilio at twilio.com/help/contact.
Contact us if you are a U.S. federal government user or otherwise accessing or using the Services in a U.S. federal government capacity.
1. Changes to These Terms
Twilio may update these Terms of Service from time to time by providing SFDC with prior written notice of material changes at least thirty (30) days in advance of the effective date. Except as otherwise specified by Twilio, updates will be effective upon the effective date indicated at the top of these Terms of Service. The updated version of these Terms will supersede all prior versions.
Your continued access or use of the Services on or after the effective date of the changes to the Terms constitutes your acceptance of any updates. If you do not agree to any updates, you should stop using the Services.
Twilio may not be able to provide SFDC with at least thirty (30) days prior written notice of updates to these Terms that result from changes in the law or requirements from telecommunications providers.
2. Your Use of Twilio Services
You are solely responsible for all use (whether or not authorized) of the Services, including the quality and integrity of your Customer Data. You are also solely responsible for all acts and omissions of anyone who has access to or otherwise uses the Services (“End Users”). You agree to take all reasonable precautions to prevent unauthorized access to or use of the Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you and each End User to connect to, access, and use the Services.
3. Access and Use of the Services
3.1 Provision of the Services. We will make the Services available to you in accordance with these Terms and the Documentation. The Services will comply with any applicable service level agreement (“SLA”), which may be updated from time to time. Services will also comply with the Twilio Security Overview. We will provide the Services in accordance with laws applicable to Twilio’s provision of the Services to its customers generally (i.e. without regard for your particular use of the Services), and subject to your use of the Services in accordance with these Terms and the Documentation.
3.2 You may use the Services, on a non-exclusive basis, solely to: (a) use and make the Services available to End Users in connection with the use of the Services in accordance with the Documentation and our Acceptable Use Policy; (b) use the Services solely in connection with and as necessary for your activities pursuant to these Terms; and (c) allow your affiliates to use the Services (subject to Section 8 (Affiliates)) pursuant to this Section 3.
4. Customer Data
4.1 Use of Customer Data
“Customer Data” consists of data and other information made available to us by or for you through the use of the Services under these Terms.
5. Customer Responsibilities, Restrictions and Requirements
5.1 Your Responsibilities
You will: (a) be solely responsible for all use (whether or not authorized) of the Services and Documentation including for the quality and integrity of Customer Data; (b) use Services only in accordance with this Agreement, the Acceptable Use Policy, Documentation, or other applicable terms relating to the use of the Services, and applicable laws; (c) be solely responsible for all acts, omissions and activities of your End Users, including their compliance with these Terms, Documentation, the Acceptable Use Policy, and any other terms of sales of the Services; (d) do your best to prevent unauthorized access to or use of the Services and notify SFDC and Twilio promptly of any such unauthorized access or use; (e) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (f) comply with the representations and warranties you make in Section 11 (Representations and Warranties) below.
5.2 Services Usage Restrictions
With regard to the Services, you agree that: (a) you will not transfer, resell, lease, license or otherwise make available the Services to third parties or offer them on a standalone basis; (b) you will not attempt to use the Services to access or allow access to Emergency Services (meaning, 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) unless the Service is expressly approved for Emergency Services, and you use those Services strictly in accordance with the Emergency Services Addendum; (c) you will ensure that the Services are used in accordance with all applicable law and third party rights, as well as these Terms and our Acceptable Use Policy, as amended from time to time; (d) you will ensure that we are entitled to use your Customer Data, as needed to provide the Services; (e) you will not use the Services in any manner that violates any applicable law; (f) you will not use the Services to create, train, or improve (directly or indirectly) a substantially similar product or service, including any other machine translation engine; (g) except as allowed by applicable law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with the Services.
5.3 Suspension of Services
We may suspend the Services immediately upon notice for cause if: (a) you violate (or give us reason to believe you have violated) any provision of these Terms, our Acceptable Use Policy; (b) there is reason to believe the traffic created from your use of the Services or your use of the Services is fraudulent or negatively impacting the operating capability of the Services; (c) we determine, in our sole discretion, that providing the Services is prohibited by applicable law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding, or (e) there is any use of the Services by Customer or End Users that in Twilio’s judgment threatens the security, integrity or availability of the Services. However, Twilio will use commercially reasonable efforts under the circumstances to (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) where practicable limit the suspension based on the circumstances leading to the suspension (e.g., to certain phone numbers, sub-accounts or other subset of traffic); and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
6. Changes to the Services
The features and functions of the Services, including the Twilio API and our SLA, may change over time. It is your responsibility to ensure that calls or requests you make to the Services are compatible with our then-current Services. Although we try to avoid making changes to the Services that are not backwards compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementing those changes.
7. Beta Offerings
From time to time, Twilio may make Beta Offerings available to you at no charge. You may choose to try such Beta Offerings or not in your sole discretion. Twilio may discontinue Beta Offerings at any time in our sole discretion and may decide not to make a Beta Offering generally available. For avoidance of doubt, such Beta Offerings are not “Services” under these Terms. “Beta Offerings” means services that are identified as alpha, beta, non-GA, limited release, developer preview, or any such similarly designated services, products, features, and documentation offered by Twilio.
Your affiliates mean any entity or person that controls you, is controlled by you, or under common control with you, such as a subsidiary, parent company, or employee. The term “control” means more than 50% ownership. Similarly, if we refer to our affiliates, we mean an entity or person that controls us, is controlled by us, or is under common control with us. Your affiliates must also agree to the Terms of Service to use or access the Services. If your affiliates use the Services under these Terms, then you and those affiliates will be jointly and severally responsible for the acts and omissions of your affiliates, including, but not limited to, their breach of these Terms. Any claim from any of your affiliates that use the Services pursuant to these Terms may only be brought against us by you on your affiliates’ behalf.
9. Product Terms
Refer to www.twilio.com/legal for terms that apply to certain features and functionality of our Services.
10. Ownership and Confidentiality
10.1 General. As between you and Twilio, we exclusively own and reserve all right, title and interest in and to the Services, Documentation, our Confidential Information and all anonymized or aggregated data resulting from use and operation of the Services (such as but not limited to volumes, frequencies, or bounce rates) and that do not identify a natural person as the source of the information, as well as any feedback, recommendations, correction requests, or suggestions from you or any End User about the Services (“Contributions”). As between you and Twilio, you exclusively own and reserve all right, title and interest in and to Customer Data and your Confidential Information.
10.2 Suggestions and Contributions. We welcome your Contributions about the Services. But please know that by submitting Contributions you agree that: (a) we are not under any obligation of confidentiality with respect to your Contributions; (b) we may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way; (c) we own your Contributions; and (d) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Contributions.
10.3.1 "Confidential Information"means any information or data, regardless of whether it is in tangible form, disclosed by either 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. Confidential Information does not include any information which: (a) is publicly available through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party's rights; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
10.3.2 Use and Disclosure. The receiving party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not 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, limit access to Confidential Information of the disclosing party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are legally bound to keep such information confidential consistent with the terms of this Section 10. Twilio may disclose the terms of any Order Form or other purchase of Services to its affiliates, legal counsel and accountants without your prior written consent, and Twilio will remain responsible for its affiliate’s, legal counsel’s or accountant’s compliance with this Section 10 (Confidentiality). Notwithstanding the foregoing, (x) Twilio may disclose the terms of this Agreement and any applicable purchase transaction to a subcontractor to the extent necessary to perform Twilio’s obligations under this Agreement, and (y) Twilio may use and disclose your Confidential Information as necessary to provide the Services, including as set forth in the Data Protection Addendum, and in each case of (x) and (y) under terms of confidentiality materially as protective as set forth herein.
10.3.3 Compelled Disclosure. Twilio may disclose your Confidential Information if so required pursuant to a regulation, law or court order. We will give you notice of the compelled disclosure (to the extent legally permitted). You will cover our 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 you are a party or to the extent fees are incurred in connection with reasonable assistance we provide to you in connection with your efforts to contest disclosure.
10.3.4 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 10 and that, in the event of an actual or threatened breach of the provisions of this Section 10, 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.
11. Representations and Warranties; Warranty Disclaimer
11.1 Representations and Warranties
11.1.1 Recordings and Communications Monitoring. You represent and warrant that if you record or monitor telephone calls, SMS messages, or other communications using the Services, then you will comply with all applicable laws prior to doing so and will secure all required prior consents to record or monitor communications using the Services. We make no representations or warranties with respect to recording or monitoring of telephone calls, SMS messages, or other communications. You acknowledge that these representations, warranties, and obligations are essential to our ability to provide you with access to recording and monitoring features that are part of the Services, and you further agree to indemnify us and our affiliates in accordance with the terms of Section 12 (Mutual Indemnification) for claims arising out of or related to your acts or omissions in connection with providing notice and obtaining consents regarding such recording or monitoring of telephone calls, SMS messages, or other communications using the Services.
11.1.2 Customer Data. You represent and warrant that you have provided (and will continue to provide) adequate notices and have obtained (and will continue to obtain) the necessary permissions and consents to provide Customer Data to us for use and disclosure pursuant to Section 4 (Our Use of Customer Data).
11.1.3 We represent and warrant that the Services will perform materially in accordance with the applicable Documentation. Twilio’s sole obligation, and your sole and exclusive remedy, in the event of any failure by Twilio to comply with this Section 11.1.3 will be for Twilio to, at Twilio’s option, re-perform the affected Services or refund to you the fees you actually paid for the affected Services.
11.1.4 Export Controls. The Services may be subject to applicable export control and economic sanctions laws of the U.S. and other jurisdictions. Twilio and You each agree to comply strictly with all domestic and international export laws and economic sanctions regulations, in the case of Twilio, in providing the Services, and, in the case of you, in receiving and using the Services respectively, and to the extent consistent with these Term, you will obtain any necessary license or other authorization to export, re-export, or transfer the Services. These laws include restrictions on destinations, End Users, and end use. Without limitation, you may not transfer the Services without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). Twilio represents that Twilio is not named on a U.S. government exclusion list. You represent that you or any End User using the Services is not named on a U.S. government exclusion list, and you further warrant that you will immediately discontinue use of the Services if you or any End User using the Services becomes placed on any such list.
11.2.1 GENERAL DISCLAIMER. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND TWILIO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TWILIO 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 WHATSOEVER, AND TWILIO SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA OFFERING. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TWILIO WILL NOT BE LIABLE AND WILL HAVE NO OBLIGATION TO INDEMNIFY CUSTOMER FOR SENSITIVE DATA THAT YOU OR ANY END USER SENDS TO TWILIO.
“Sensitive Data” has the meaning given in the AUP.
12. Mutual Indemnification
12.1 Indemnification by Twilio. We will defend you from and against all claims, demands, suits or proceedings made or brought against you by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (“Infringement Claim”), and will indemnify you from any damages, attorney fees, and costs finally awarded against you as a result of, or for amounts you pay to settle an Infringement Claim under a settlement for which Twilio has given its written approval.
12.2 Infringement Options. If your use of the Services has become, or in Twilio’s opinion is likely to become, the subject of any Infringement Claim, Twilio may at its option and expense: (a) procure for you the right to continue using the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms. This Section 12 states your exclusive remedy for any Infringement Claim by a third party.
12.3 Twilio will have no liability or obligation with respect to any Infringement Claim and a court award of damages (a) arising out of your use of the Services in breach of these Terms, (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing, or (c) arising from Services for which there is no charge.
12.4 Indemnification by You. You will defend Twilio, its officers, directors, employees, and affiliates (“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) your or any of your End Users’ breach of these Terms or your obligations under Section 5 (Customer Responsibilities, Restrictions and Requirements), or breach of your representations or warranties under Section 11 of these Terms; or (b) your or any of your End Users’ use of the Services or any activities under these Terms (collectively, “Customer Indemnifiable Claims”) and will indemnify Twilio from any damages, attorney fees, and costs finally awarded against Twilio Indemnified Parties as a result of, or for amounts paid by Twilio Indemnified Parties to settle a Customer Indemnifiable Claim under a settlement for which you have given your written approval.
12.5 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 Infringement Claim or Customer Indemnifiable Claim, as applicable (collectively referred to as a “Claim”), provided, however, that the failure to give such prompt notice shall 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 and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party's consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); 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 pursuant to this Section 12 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.
13. Limitation of Liability; Emergency Services
13.1 INDIRECT CONSEQUENTIAL AND RELATED DAMAGES. EXCEPT FOR DAMAGES ARISING FROM BREACH OF YOUR OBLIGATIONS UNDER SECTION 5 (CUSTOMER RESPONSIBILITIES, RESTRICTIONS AND REQUIREMENTS), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY 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.
13.2 LIMITATION OF LIABILITY. EXCEPT FOR DAMAGES ARISING FROM BREACH OF YOUR OBLIGATIONS UNDER SECTION 5 (CUSTOMER RESPONSIBILITIES, RESTRICTIONS AND REQUIREMENTS) AND EXCEPT FOR AMOUNTS PAYABLE UNDER A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 (MUTUAL INDEMNIFICATION) OF THESE TERMS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER 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.
13.3 EMERGENCY SERVICES DISCLAIMER. NEITHER TWILIO NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD TWILIO HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES, AS DEFINED IN SECTION 2(b), ABOVE. TWILIO’S OUTBOUND COMMUNICATIONS SERVICES SHOULD NOT BE USED FOR CONTACTING EMERGENCY SERVICES. UNLESS THE TWILO SERVICE IS EXPRESSLY APPROVED FOR THIS PURPOSE AND YOU AND TWILIO HAVE ENTERED AN EMERGENCY SERVICES ADDENDUM <APPROVED PRODUCTS AND ADDENDA> IN CONNECTION WITH YOUR USE OF THE APPROVED PRODUCT.
13.4 THE PROVISIONS OF THIS SECTION 13 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. Note that these Terms apply solely to the Services covered hereunder, and do not cover the SFDC services. Twilio's liability under these Terms applies only to the Services covered hereunder and does not apply to the SFDC services. You must contact SFDC and not Twilio if you have any claims or concerns regarding the SFDC services.
14. Term; Termination
14.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by you (through your use of the Services) and continue until terminated in accordance with the agreement between you and SFDC or Section 14.2 (Termination) below (“Term”).
14.2 Termination. Either party may terminate these Terms and close your customer account(s) for any reason upon thirty (30) days written notice to SFDC. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, then these Terms will not terminate until such Order Form(s) have expired or been terminated. Twilio, at its sole discretion, may terminate these Terms in the event you commit any material breach of these Terms and fail to remedy that breach within five (5) days after Twilio provides written notice of that breach to SFDC. You may also terminate these Terms in the event we commit a material breach of these Terms and fail to remedy that breach within five (5) days after your providing written notice of that breach to SFDC.
Upon termination of these Terms, the terms of this Section 15 and the terms of the following Sections will survive (i.e. still apply): Section 4 (Customer Data), Section 10 (Ownership and Confidentiality), Section 12 (Mutual Indemnification), Section 13 (Limitation of Liability; Emergency Services), Section 16 (General), and Section 17 (Agreement to Arbitrate).
16.1 Compliance with Laws. You will comply with the applicable law relating to your respective activities pursuant to these Terms. Twilio will provide the Services in accordance with laws applicable to Twilio’s provision of the Services to its customers generally (i.e. without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement and the Documentation.
16.2 No Waiver, Order of Precedence. Our failure to enforce at any time any provision of these Terms, our Acceptable Use Policy, or any other of your obligations does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, our Acceptable Use Policy, or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by you and us to be legally binding. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (except as otherwise expressly set forth in an applicable Order Form): (1) the AUP, (2) product-specific terms, (3) the Terms of Service and (4) the Documentation.
16.3 Assignment. You will not assign or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be void. Twilio may assign these Terms, in whole or in part, without consent. Subject to this Section 16.3, these Terms will be binding on both you and Twilio and each of our successors and assigns.
16.4 Relationship. You 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 shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You 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. You 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 you 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.
16.5 Severability. Except as described in Section 17 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
16.6 Notices. Any notice required or permitted to be given hereunder will be given in writing to the party at the address specified in this Agreement by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email. Notices to Twilio shall be copied to email@example.com, Attn: General Counsel.
16.7 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; 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.
16.8 Government Terms. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with these Terms. If you (or any of your End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Services were developed fully at private expense.
16.9 Governing Law and Venue. The enforceability and interpretation of Section 17 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 17, 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 17 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the Services shall be instituted in either the state or federal courts of San Francisco, California, and we each consent to the personal jurisdiction of these courts.
16.10 Entire Agreement. Except as provided in these Terms and any exhibits or addenda or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and 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 under these Terms. Any purchase order document or similar document provided by you shall be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon shall be void and have no effect with regard to these Terms between you and Twilio and be non-binding against Twilio even if signed by Twilio after the date you accept these Terms.
17. Agreement to Arbitrate
Before bringing a formal legal case, please first try contacting our Customer Support. Most disputes can be resolved that way.
17.1 We Both Agree to Arbitrate. If a dispute cannot be resolved through our Customer Support Team, you or any of your affiliates on one hand and Twilio and any of Twilio’s affiliates on the other hand, all agree to resolve any dispute relating to these 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 17.2 (Exceptions to Agreement to Arbitrate). It also applies even after you have stopped using the Services. 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 17 (Agreement to Arbitrate), you understand that you and your 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 Terms or the Services.
17.2 Exceptions to Agreement to Arbitrate. You and your 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) Your, your affiliates’, Twilio’s or Twilio’s affiliates’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or
(b) Your violation of our Acceptable Use Policy.
Also, any of us can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. 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.
17.3 Details of Arbitration Procedure. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this Section 17conflicts with the Rules, the language of this Section 17 applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 17 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
17.4 Class Action Waiver. Both you and your affiliates, on one hand, and Twilio and its affiliates on the other hand, agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Twilio and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Twilio customers, and cannot be used to decide other disputes with other customers. If a court decides that this Section 17.4 (Class Action Waiver) is not enforceable or valid, then the entire Section 17 (Agreement to Arbitrate) will be null and void (i.e., go away). But, the rest of the Terms will still apply.
18. Additional Terms
18.1 For customers using Twilio to process personal data from the European Economic Area (EEA), Switzerland, or the United Kingdom:
EU Data Protection Addendum. If Twilio will be processing personal data from the EEA, Switzerland, or the United Kingdom on your behalf, the Data Protection Addendum incorporated by reference into these Terms of Service will apply.
18.2 For more information about Twilio’s compliance with the GDPR, please click here.
18.3 For Customers who reside in European Economic Area (EEA), Switzerland, or the United Kingdom: the following additional terms shall apply:
18.3.1 In relation to the limitation of liability: Nothing in this Agreement shall exclude or limit the liability of either party for (i) gross negligence or intentional misconduct of such party, (ii) death or personal injury caused by that party's negligence or (iii) fraud or fraudulent misrepresentation or (iv) any other liability to the extent that the same may not be excluded or limited as a matter of applicable law.
18.3.2 In relation to updating these Terms: Twilio may amend or modify these Terms from time to time, in which case the amended or modified version of these Terms will supersede all prior versions. Twilio will notify SFDC not less than thirty (30) days prior to the effective date of any such amendment or modification about the intended amendments or modifications. If you do not object to the amendment or modification within thirty (30) days from the aforementioned notice, such non-objection may be relied upon by Twilio as your consent to any such amendment or modification. Twilio will inform you about your right to object and the consequences of non-objection with the aforementioned notice. Please note, Twilio may not be able to provide at least thirty (30) days prior written notice of updates to these Terms of Service that result from changes in the law or requirements from telecommunications providers.
18.4 For Customers who reside in Germany the following additional terms shall apply:
18.4.1 In relation to Warranties:
(aa) Twilio warrants that the Services will operate in accordance with the Documentation and will materially comply with any specifications contained therein. Both parties agree that to the extent the Customer is entitled to any statutory warranty rights, the applicable statutory warranty period is hereby reduced to twelve (12) months
(bb) Any and all further warranties are excluded.