Executed+Agreement+with+Twilio.pdf

CONFIDENTIAL

00094799.0

Twilio Platform Agreement – US Public Sector

202110 ENG US

05/31/2022 07:40 AM

TWILIO PLATFORM AGREEMENT

Customer Name State of North Dakota, Office of Management and Budget, Fiscal

Division

Customer Address 600 E Boulevard Ave Dept 101, Bismarck, North Dakota, 58505-

0602, United States

This Twilio Platform Agreement (“Agreement”) sets forth the terms for Customer’s use of the Services (as defined below) and is entered into as of the last date beneath the parties’ signatures below (“Effective Date”) between

Twilio Inc., a Delaware corporation, with a place of business at 101 Spear Street, 1st Floor, San Francisco, CA 94105

(“Twilio”) and the customer identified above (“Customer”). This Agreement consists of the following Terms and

Conditions, all exhibits and attachments hereto, and any applicable Order Form(s) (as defined below).

IN WITNESS WHEREOF, the parties have executed this Agreement through their respective duly authorized representatives as of the Effective Date.

Customer

Twilio Inc.

By: _______________________________________ By: _______________________________________

Name: _____________________________________ Name: ____________________________________

Title: _____________________________________ Title: _____________________________________

Date: ______________________________________ Date: _____________________________________

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TERMS AND CONDITIONS

1. Definitions

“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 Customer makes available to End

Users that interfaces with the Services.

“Customer Data” means data and other information made available by or for Customer, to Twilio, through the use of the Services under this Agreement.

“Data Protection Addendum” means the terms relating to the processing of personal data pursuant to this

Agreement, the current version of which is attached hereto as Exhibit A.

“Documentation” means Twilio’s documentation, including any usage guides and policies, for the Services, the current version of which is available at https://www.twilio.com/docs.

“End User” means any user of each 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 Customer 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.

“Privacy Notice” means the privacy notice for the Services, the current version of which is attached hereto as

Exhibit B.

“Services” means the products and services provided by Twilio or its Affiliates, as applicable, that are (a) used by Customer, including, without limitation, products and services that are on a trial basis or otherwise free of charge or (b) ordered by Customer under an Order Form. Services include products and services that provide both (x) platform services, including access to any application programming interface (“Twilio API”) and (y) where applicable, communications services used in connection with the Twilio APIs.

“Service Usage Data” means any data that is derived from the use of the Services that does not directly or indirectly identify any Customer, End Users, or natural person and includes (a) data such as volumes, frequencies, bounce rates and Service performance data and (b) subject to any restrictions under applicable law or regulation, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify Customer, End Users, or natural persons.

“Support Terms” means the terms of support for the Services, the current version of which is attached hereto as Exhibit C.

“Twilio Acceptable Use Policy” or “AUP” means certain terms relating to the use of the Services, including the Service and Country Specific Requirements set forth therein, the current version of which is attached hereto as

Exhibit D.

https://www.twilio.com/docs https://www.twilio.com/docs

“Twilio Security Overview” means the security related terms for the Services, the current version of which is attached hereto as Exhibit E.

“Twilio SLA” means the service level agreement for the Services, the current version of which is attached hereto as Exhibit F.

Capitalized terms not defined in this Section 1 will have the meaning given to them in this Agreement.

2. Services

2.1 Provision of the Services.

Twilio will: (a) provide the Services to Customer pursuant to this Agreement, the applicable Documentation, and any applicable Order Form(s); (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 customers generally (i.e. without regard for Customer’s particular use of the Services), subject to Customer’s use of the Services in accordance with this Agreement, the applicable Documentation, and any applicable Order Form(s); (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 Customer with applicable support for the Services as described in the Support Terms.

2.2 Customer Responsibilities. Customer will: (a) be solely responsible for all use of the Services and

Documentation under its account and each Customer Application; (b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to End Users in connection with the use of each Customer Application as permitted herein) or offer them on a standalone basis; (c) use the Services only in accordance with this Agreement, the Twilio Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (d) be solely responsible for all acts, omissions, and activities of End Users, including their compliance with this Agreement, the Twilio Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (e) 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; (f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (g) comply with its representations and warranties set forth in

Section 5 (Representations, Warranties, and Disclaimer).

2.3 Suspension of Services. Twilio may suspend the Services immediately upon notice to Customer for cause if Twilio, in good faith, determines: (a) that Customer or an End User materially breaches (or Twilio, in good faith, believes that Customer or an End User has materially breached) any provision of this Agreement, including its obligations under the Twilio Acceptable Use Policy; (b) there is an unusual and material spike or increase in

Customer’s use of the Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services; (c) that its provision of the Services is prohibited by applicable law or regulation;

(d) there is any use of the Services by Customer or an End User that threatens the security, integrity, or availability of the Services; or (e) that information in Customer’s account is untrue, inaccurate, or incomplete. Customer remains responsible for the Fees (as defined below).

2.4 Changes to the Services. Customer 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 Customer’s responsibility to ensure each 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 Customer at least sixty (60) days prior to implementation. In the event Twilio makes a non-backwards compatible change to a Twilio API and such change materially and negatively impacts Customer’s use of the Services (“Adverse API Change”), (a) Customer will notify

Twilio of the Adverse API Change and (b) Twilio may agree to work with 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 regulation.

2.5 Beta Offerings. From time to time, Twilio may make Beta Offerings available to Customer. Customer may, in its sole discretion, choose to use a Beta Offering. Twilio may discontinue a Beta Offering at any time, in its sole discretion, or decide not to make a Beta Offering generally available.

3. Fees and Payment Terms

3.1 Fees. Customer agrees to pay the fees set forth in the applicable Order Form(s), or in the case Customer purchases the Services through a Twilio authorized reseller, the Twilio authorized reseller. If Customer uses any

Services not set forth in the applicable Order Form(s), Customer will be charged the applicable rates available at https://www.twilio.com/pricing.

3.2 Taxes and Communications Charges.

(a) 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”). Customer is not responsible for and will not pay local, state, or federal taxes. Customer sales tax exemption number is E-2001.

(b) Communications Charges. All fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges (collectively, “Communications Surcharges”), Customer will pay all Communications Surcharges associated with Customer’s use of the Services. Communications

Surcharges will be shown as a separate line item on an invoice. Customer will pay all costs, fines, or penalties that are imposed on Twilio by a government or regulatory body or a telecommunications provider as a result of Customer’s or an End User’s use of the Services.

(c) Exemption. If Customer is exempt from paying certain Taxes or Communications Surcharges, Customer will provide the necessary exemption information as requested by Twilio or a valid exemption certificate issued by the appropriate authority via e-mail to taxforms@twilio.com. Customer will be exempt on a going-forward basis once Twilio has approved Customer’s exemption request. If the appropriate authority determines, at any time, that Customer is not exempt from paying any Taxes or Communications Surcharges, Customer will promptly pay such

Taxes or Communications Surcharges to Twilio, plus any applicable interest or penalties.

3.3 Payment Terms. Except as otherwise expressly set forth herein, payment obligations are non-cancelable and fees, Taxes, and Communications Surcharges (collectively, “Fees”), once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 3.4 (Payment Disputes), Customer will pay the Fees due hereunder in accordance with the following applicable payment method:

(a) Credit Card. If Customer elects to add funds to its account by credit card and uses such funds to pay the Fees due, Customer is responsible for ensuring such funds cover the Fees due. If Customer’s account does not have sufficient funds or Customer’s credit card declines a charge for the Fees due, Twilio may suspend the provision of the Services to all of Customer’s accounts until the Fees due are paid in full. Customer is prohibited from creating new accounts until the Fees due are paid in full.

(b) Invoicing. If Customer elects to receive invoices and Twilio approves Customer for the same, invoices will be sent to Customer each month via email to the email address(es) Customer designates in its account. If Customer purchases the Services through a reseller, Customer will pay reseller the Fees due within the time frame established between Customer and the reseller. Otherwise, Customer will pay the Fees due within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s) or an invoice to the extent Customer procures the Services without an Order Form, the Fees are payable in United States dollars. If Customer fails to pay the Fees and remedy such failure within fifteen (15) days of the date Twilio provides Customer with written notice of the same, then Twilio may (i) assess and Customer will pay interest equal to the maximum amount allowable by applicable law https://www.twilio.com/pricing and (ii) suspend the provision of the Services to all of Customer’s accounts until the Fees due are paid in full. Customer is prohibited from creating new accounts until the Fees due are paid in full.

3.4 Payment Disputes. Customer will notify Twilio in writing within sixty (60) days of the date Twilio bills

Customer for any Fees that Customer wishes to dispute. Customer may withhold the disputed Fees until the dispute is resolved. Where Customer is disputing any Fees, Customer must act reasonably and in good faith and will cooperate diligently with Twilio to resolve the dispute. Twilio will not charge Customer a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless Customer fails to cooperate diligently with Twilio or Twilio determines the dispute is not reasonable or brought in good faith by Customer.

4. Ownership, Customer Data, and Confidentiality

4.1 Ownership Rights. As between the parties, Twilio exclusively owns and reserves all right, title, and interest in and to the Services, the Documentation, Twilio's Confidential Information (as defined below), Service

Usage Data, and any feedback or suggestions provided by Customer or an End User regarding the Services. As between the parties, Customer exclusively owns and reserves all right, title, and interest in and to the Customer

Applications, Customer's Confidential Information, and Customer Data, subject to Twilio’s rights to process Customer

Data in accordance with this Agreement.

4.2 Customer Data. Customer grants Twilio and its Affiliates the right to process Customer Data as necessary to provide the Services in a manner that is consistent with this Agreement, the Data Protection Addendum, and the

Privacy Notice. Customer is responsible for the quality and integrity of Customer Data.

4.3 Confidentiality.

(a) 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, this Agreement, Order Form(s), Customer Data, security reports and attestations, audit reports, customer lists, pricing, 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 this Agreement 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.

(b) 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 of exercising Receiving

Party’s rights or fulfilling its obligations under this Agreement 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” as necessary for Receiving Party to exercise its rights or fulfill its obligations under this Agreement. Receiving

Party is responsible for its Representatives’ compliance with this Section 4.3. 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 4.3. 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 Twilio’s SOC2 or similar report, which will constitute Twilio’s Confidential Information, only to an End User or an End User's employee or contract worker who has a “need to know” for such SOC2 or similar report and is legally bound to terms of confidentiality that are at least as protective as the terms of this Section 4.3. Notwithstanding the foregoing, this

Section 4.3(b) does not prohibit Customer from disclosing the terms of this Agreement to the extent required by public disclosure laws applicable to Customer (“Public Disclosure Laws”), provided that, to the extent permissible, any material legal terms included in this Agreement (e.g., representations and warranties, indemnification, limitation of liability, etc.)and any trade secrets, non-publicly available pricing, future business plans, future product plans or features, or business strategies of Twilio are redacted.

(c) 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). Receiving

Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing

Party’s sole expense to the extent permitted by applicable law.

(d) 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 4.3 and that, in the event of an actual or threatened breach of the provisions of this Section 4.3, 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.

5. Representations, Warranties, and Disclaimer

5.1 Power and Authority Representation. Each party represents and warrants that it has validly entered into this Agreement and has the legal power to do so.

5.2 Anti-Corruption and International Trade Laws. Each party (a) warrants that it will comply with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States, and

(b) represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws. Customer will promptly notify Twilio in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by Twilio. Customer represents that it has obtained and warrants that it will continue to 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 Customer, also End Users) is not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). Customer will immediately (a) discontinue its use of the

Services if Customer becomes placed on any Sanctions List and (b) remove an End User’s access to the Services if such End User becomes placed on any Sanctions List. Customer represents that it has not and warrants that it will not export, re-export, or transfer the Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately upon written notice to the other party if the other party is in breach of its obligations in this Section 5.2. If Customer’s account is blocked because it is operating in a country or region prohibited under this Section 5.2, Customer will receive notice of its account being inoperable when Customer attempts to log into its account in such prohibited country or region.

5.3 Consents and Permissions. Customer represents and warrants that it has provided and will continue to provide adequate notices, and that it has obtained and will continue to obtain the necessary permissions and consents, to provide Customer Data to Twilio for processing pursuant to Section 4.2 (Customer Data).

5.4 Customer Application IP Infringement. Customer represents and warrants that each Customer

Application, or Customer’s or any End Users’ use of each Customer Application, does not and will not infringe or misappropriate a third party’s intellectual property rights.

5.5 Services. Twilio represents and warrants that the Services perform materially in accordance with the applicable Documentation. Customer’s exclusive remedy for a breach of this Section 5.4 will be, at Twilio’s option, to (a) remediate any material non-conformity or (b) refund to Customer the Fees paid for the time period during which the affected Services do not comply with this Section 5.5.

5.6 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 TELECOMMUNICATIONS

PROVIDERS. CUSTOMER ACKNOWLEDGES THE INTERNET AND TELECOMMUNICATIONS

PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE AND THAT TWILIO WILL HAVE NO LIABILITY

FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF CUSTOMER DATA WHILE IN TRANSIT VIA

THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK. 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.

6. Indemnification

6.1 Indemnification by Twilio.

(a) Scope of Indemnification. Twilio will defend Customer, its Affiliates, and each of their directors, officers, and employees (collectively, “Customer Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a Customer 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 Customer from any fines, penalties, damages, attorneys’ fees, and costs awarded against a Customer Indemnified Party or for settlement amounts approved by Twilio for a Twilio Indemnifiable Claim.

(b) Infringement Options. If Twilio’s provision of the Services 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 the right to continue to provide 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 this Agreement, 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

Customer any unused pre-paid Fees.

(c) Limitations. Twilio will have no liability or obligation under this Section 6.1 with respect to any Twilio

Indemnifiable Claim arising out of (i) the use of the Services by Customer in breach of this Agreement; (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.

6.2 Indemnification by Customer. Intentionally omitted.

6.3 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

Customer 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 Indemnifying Party of its obligations hereunder, except to the extent that Indemnifying Party was actually and materially prejudiced by such failure; (b) Indemnifying Party will have the sole authority to defend or settle a Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities hereunder, at

Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, Indemnifying Party will not settle any Claim for which it has an obligation to indemnify under this Section 6 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.

6.4 Exclusive Remedy. This Section 6 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third-party claims.

7. Limitation of Liability

7.1 LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES. EXCEPT FOR

DAMAGES THAT CANNOT BE LIMITED UNDER N.D.C.C. § 32-12.2-15, NEITHER PARTY NOR ITS

AFFILIATES SHALL 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.

7.2 LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER

PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS

AGREEMENT EXCEED TWICE (2X) 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.

7.3 EXCEPTIONS TO THE LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO

THE CONTRARY IN SECTION 7.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED

DAMAGES) AND SECTION 7.2 (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 7.1 AND

SECTION 7.2 DO NOT APPLY TO (a) CUSTOMER’S BREACH OF SECTION 2.2 (CUSTOMER

RESPONSIBILITIES); (b) CUSTOMER’S AND ITS AFFILIATES’ BREACH OF SECTION 3 (FEES AND

PAYMENT TERMS); (c) AMOUNTS PAYABLE PURSUANT TO TWILIO’S INDEMNIFICATION

OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION).

8. Term, Termination, and Survival

8.1 Agreement Term. This Agreement will commence on the Effective Date and ends one year after the

Effective Date, or one year after the effective date of any Order Form then existing. This Agreement will not automatically renew. This Agreement may continue for up to three option years if Customer notifies authorized reseller unless otherwise terminated in accordance with Section 8.2 (Termination) (“Term”).

Any additional option year Customer exercises must correspond with an additional Order Form executed between Twilio and reseller.

8.2 Termination.

(a) For Convenience. Either party may terminate this Agreement for convenience by providing the other party with at least thirty (30) days prior written notice. Notwithstanding the preceding sentence, if there are any Order

Form(s) in effect, this Agreement will not terminate until all such Order Form(s) have expired or have been terminated in accordance with the terms therein.

(b) Material Breach. Either party may terminate this Agreement (including all Order Form(s) and Services that are in effect) in the event the other party commits any material breach of this Agreement and fails to remedy such breach within fifteen (15) days of the date of written notice of such breach. For the avoidance of doubt, a breach of the AUP will be considered a material breach of this Agreement. If Twilio terminates the Agreement because of

Customer’s material breach, then Twilio will also close Customer’s account.

(c) Insolvency. Subject to applicable law, either party may terminate this Agreement immediately by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.

(d) Termination for Lack of Funding or Authority

Customer, by written notice to reseller, or Twilio, may terminate the whole or any part of this Agreement

(including all Order Form(s) and Services that may be effect) under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services are no longer allowable or appropriate for purchase under this Agreement or are no longer eligible for the funding proposed for payments authorized by this Agreement.

3) If any license, permit, or certificate required by law or rule, or by the terms of this Agreement, is for any reason denied, revoked, suspended, or not renewed.

If Customer terminates the Agreement under this subsection (d), Customer is responsible for paying for all

Services it has used up to the effective date of termination, in accordance with the payment terms in Section

3 Fees and Payment Terms.

8.3 Survival. Upon termination of this Agreement, Customer’s payment obligations, the terms of this Section

8.3 and the terms of the following Sections will survive: Section 2.1(c) (regarding the Twilio Security Overview), Section 3 (Fees and Payment Terms), Section 4 (Ownership, Customer Data, and Confidentiality), Section 5.6

(Disclaimer), Section 6 (Mutual Indemnification), Section 7 (Limitation of Liability), and Section 10 (General).

9. Insurance

Twilio will provide Customer a signed current Certificate of Insurance upon Customer’s written request. All insurance carriers will be rated A-VII or better by A.M. Best Company. Twilio will maintain the following insurance throughout the Term:

Commercial General Liability/Public Liability with limits of USD $1,000,000 per occurrence and USD

$2,000,000 General Aggregate.

Automobile Liability insurance covering non-owned and hired vehicles will be with limits not less than

USD $1,000,000 per occurrence.

Workers’ Compensation insurance as required by the law(s) of the state(s) in which the Agreement is to be performed. Employers Liability limit is USD $1,000,000.

Umbrella Liability excess of Commercial General Liability, Auto Liability and Employer’s Liability with limits not less than USD $5,000,000 per occurrence and in the aggregate.

Professional Liability insurance covering liability incurred as a result of errors and omissions, wrongful acts, negligent acts, infringement of copyrights and trademarks in providing the Services with a limit of

USD $5,000,000 per claim and in the aggregate.

Network Security and Privacy Liability in an amount not less than USD $5,000,000 per claim or event and in the aggregate. The policy will include coverage for unauthorized access, use, or loss of Confidential

Information.

Crime/Fidelity Bond coverage with limits of USD $5,000,000 per claim and annual aggregate.

Crime/Fidelity Bond coverage includes Employee Dishonesty and Client Property.

10. General

10.1 Affiliates.

(a) Affiliates of Customer. An Affiliate of Customer may use the Services under and in accordance with the terms of this Agreement. Customer represents and warrants that it has sufficient rights and the authority to make this Agreement binding upon each Affiliate of Customer. Customer and each Affiliate of Customer will be jointly and severally liable for the acts and omissions of such Affiliate in connection with this Agreement and such Affiliate’s use of the Services. Any claim from an Affiliate of Customer will only be brought against Twilio by Customer on behalf of such Affiliate.

(b) Affiliates of Twilio. An Affiliate of Twilio may provide the Services, or a portion thereof, to Customer or an Affiliate of Customer, as applicable, in accordance with this Agreement and any applicable Order Form(s) with such Affiliate of Twilio. Twilio will (x) be responsible for the Services its Affiliates provide and (y) not be relieved of its obligations under this Agreement if its Affiliates provide the Services or a portion thereof. Twilio will enforce the terms of this Agreement relating to the Services its Affiliates provide. Notwithstanding anything to the contrary in this Agreement, an Affiliate of Twilio may directly bill Customer or an Affiliate of Customer, as applicable, (i) for the Services it provides or (ii) solely as a billing agent for Twilio or the Affiliate of Twilio providing the Services, as applicable.

10.2 Assignment. Neither party hereto may assign or otherwise transfer this Agreement or any applicable

Order Form(s), 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, and except where prohibited by applicable law, either party may assign this Agreement or any applicable Order Form(s), 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, this

Agreement and any applicable Order Form(s) will be binding on the parties and their respective successors and permitted assigns.

10.3 Relationship. Each party is an independent contractor in the performance of each and every part of this

Agreement. Nothing in this Agreement is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities, damages, or debts of any type whatsoever that may arise on account of its activities, or those of its employees and agents, in the performance of this Agreement. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.

10.4 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party (including any End User or Affiliate) unless it expressly states that it does.

10.5 Notices. Notices to Twilio will be provided via email to legalnotices@twilio.com. All notices to

Customer will be provided via email to the relevant contact(s) designated by Customer in its account.

10.6 Governing Law and Attorneys’ Fees. This Agreement is governed by and construed in accordance with the laws of the State of North Dakota. Any action to enforce this Agreement must be adjudicated exclusively in the state District Court of Burleigh County, North Dakota. Each party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

10.7 Dispute Resolution. By entering into this Agreement, Customer does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The parties may enforce the rights and remedies in judicial proceedings. Customer does not waive any right to a jury trial.

10.8 Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay, or default arises out mailto:legalnotices@twilio.com 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, or other natural disaster (collectively, “Force Majeure Events”). The party affected by a

Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

10.9 Waiver and Order of Precedence. No failure or delay by either party in exercising any right or enforcing any provision under this Agreement will constitute a waiver of that right or provision, or any other provision. Titles and headings of sections of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form(s), (2) the Data Protection Addendum, (3) the terms set forth in the body of this Twilio Platform Agreement, (4) the AUP, (5) any other terms incorporated by reference herein or any other exhibits or attachments hereto, and (6) the applicable Documentation.

10.10 Severability. In the event that any provision of this Agreement 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 this Agreement will continue in full force and effect.

10.11 Counterparts. This Agreement 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.

10.12 Entire Agreement. This Agreement (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 non-disclosure or other agreements, whether oral or written. No oral or written information or advice given by Twilio, its agents, or its employees will create a warranty or in any way increase the scope of the warranties or obligations in this Agreement. The parties agree that any term or condition stated in Customer’s vendor registration form or registration portal or in any Customer purchase order document or similar document will be construed solely as evidence of Customer’s internal business processes and the terms and conditions contained therein will be void and have no effect with regard to this Agreement even if accepted by Twilio or signed by the parties after the Effective Date.

10.13 Government Use. Twilio provide the Services, including any related software and technology, for ultimate federal government end use solely in accordance with this Agreement. If Customer or any 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 this Agreement. All other use is prohibited and no rights other than those provided in this

Agreement are conferred. The Services were developed fully at private expense.

Exhibit A

Data Protection Addendum

Last Updated: April 4, 2022

This Data Protection Addendum (“Addendum”) forms part of the agreement between Customer and Twilio covering

Customer’s use of the Services (as defined below) (“Agreement”).

I. Introduction

“Applicable Data Protection Law” refers to all laws and regulations applicable to Twilio’s processing of personal data under the Agreement.

“controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data.

“Customer Account Data” means personal data that relates to Customer’s relationship with Twilio, including the names or contact information of individuals authorized by Customer to access Customer’s account, and billing information of individuals that Customer has associated with its account. Customer Account Data also includes any data Twilio may need to collect for the purpose of identity verification (including providing the MFA Services, as defined below), or as part of its legal obligation to retain Subscriber Records (as defined below).

“Customer Content” means (a) personal data exchanged as a result of using the Services (as defined below), such as text message bodies, voice and video media, images, email bodies, email recipients, sound and, where applicable, details Customer submits to the Services from its designated software applications and services and (b) data stored on

Customer’s behalf such as communication logs within the Services or marketing campaign data that Customer has uploaded to the Services (as defined below).

“Customer Data” has the meaning given in the Agreement. Customer Data includes Customer Account Data, Customer Usage Data, Customer Content, and Sensitive Data, each as defined in this Addendum.

“Customer Usage Data” means data processed by Twilio for the purposes of transmitting or exchanging Customer

Content utilizing phone numbers either through the Public Switched Telephone Network (PSTN) or by way of other communication networks. Customer Usage Data includes data used to identify the source and destination of a communication, such as (a) individual data subjects’ telephone numbers, data on the location of the device generated in the context of providing the Services, and the date, time, duration and the type of communication and (b) activity logs used to identify the source of Service requests, optimize and maintain performance of the Services, and investigate and prevent system abuse.

“Multi Factor Authentication Services” or “MFA Services” means the provision of a portion of the Services under which Customer adds an additional factor for verification of Customer’s end users’ identity in connection with such end users’ use of Customer’s software applications or services.

“personal data” means any information relating to an identified or identifiable natural person (“data subject”). An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier, such as a name, an identification number, location data, an online identifier, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

“Twilio Privacy Notice” means the privacy notice for the Services, the current version of which is available at https://www.twilio.com/legal/privacy.

“processor” means the entity which processes personal data on behalf of the controller.

“processing” (and “process”) means any operation or set of operations performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, https://www.twilio.com/legal/privacy https://www.twilio.com/legal/privacy https://www.twilio.com/legal/privacy.%E2%80%9Cprocessor adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.

“Security Incident” means a confirmed or reasonably suspected accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data.

“Sensitive Data” means (a) social security number, passport number, driver’s license number, or similar identifier

(or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords, mother’s maiden name, or date of birth; (f) criminal history;

or (g) any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law or regulation relating to privacy and data protection.

“Services” means the products and services provided by Twilio or its Affiliates, as applicable, that are (a) used by

Customer, including, without limitation, products and services that are on a trial basis or otherwise free of charge or

(b) ordered by Customer under an Order Form. Services include products and services that provide both (x) platform services, including access to any application programming interface (“Twilio API”) and (y) where applicable, communications services used in connection with the Twilio APIs.

”Subscriber Records” means Customer Account Data containing proof of identification and proof of physical address necessary for Twilio to provide Customer or Customer’s end users with phone numbers in certain countries

(“telephone number assignments”). When required by law or regulation, Subscriber Records are shared with local telecommunications providers, which provide local connectivity services, or local government authorities (additional information about these regulatory requirements is available at https://www.twilio.com/guidelines/regulatory).

“sub-processor” means (a) Twilio, when Twilio is processing Customer Content and where Customer is a processor of such Customer Content or (b) any third-party processor engaged by Twilio to process Customer Content in order to provide the Services to Customer. For the avoidance of doubt, telecommunication providers are not sub-processors.

“Third Party Request” means any request, correspondence, inquiry, or complaint from a data subject, regulatory authority, or third party.

Capitalized terms not defined in this Section 1 will have the meaning given to them in this Addendum or the

Agreement.

II. Controller and Processor

2. Relationship of the Parties

2.1 Twilio as a Processor. The parties acknowledge and agree that with regard to the processing of Customer

Content, Customer may act either as a controller or processor and Twilio is a processor. Twilio will process Customer

Content in accordance with Customer’s instructions as set forth in Section 5 (Customer Instructions).

2.2 Twilio as a Controller of Customer Account Data. The parties acknowledge that, with regard to the processing of Customer Account Data, Customer is a controller and Twilio is an independent controller, not a joint controller with Customer. Twilio will process Customer Account Data as a controller in order to (a) manage the relationship with Customer; (b) carry out Twilio’s core business operations, such as accounting and filing taxes; (c) detect, prevent, or investigate…