Last Updated: September 13, 2021
These Advisory Services Terms (“Agreement”) sets forth the terms for the Advisory Services (as defined below) between the applicable Twilio entity identified below (“Twilio”) and the customer identified on the applicable Order Form (as defined below) (“Customer”). This Agreement is entered into by the parties as of the date Customer executes the first Order Form for the Advisory Services (“Effective Date”).
If Customer is domiciled in: | Twilio entity providing the Advisory Services: |
Any country outside of the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City other than Japan | Twilio Inc., a Delaware corporation, with a place of business at 101 Spear Street, 1st Floor, San Francisco, CA 94105 |
Any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City | Twilio Ireland Limited, a company registered in the Republic of Ireland, whose registered address is 25-28 North Wall Quay, Dublin 1, Ireland |
Japan | Twilio Japan GK, a Japanese company with a place of business at Link Square Shinjuku 16F, 5-27-5 Sendagaya, Shibuya-ku, Tokyo 151-0051, Japan |
1. Definitions
“Advisory Services” mean advisory, expert, consulting, or onboarding services provided to Customer under this Agreement and in accordance with the applicable Advisory Services Package (as defined below). Advisory Services exclude any services set forth in Section 2.2 (Out of Scope Services).
“Advisory Services Package” means the Advisory Services package purchased by Customer, the terms for which are incorporated herein by reference and set forth in (a) Exhibit A to this Agreement, or (b) a statement of work executed between the parties, as applicable.
“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.
“Customer Documentation” means any documents developed, conceived, or acquired specifically for Customer in connection with the Advisory Services.
“Customer Materials” means any information, specifications, instructions, or materials provided by Customer in connection with the Advisory Services.
“Order Form” means an ordering document or a statement of work between Customer and Twilio (or any of their Affiliates) that identifies the applicable Advisory Services Package purchased by Customer, the mutually agreed upon rate for such Advisory Services Package, and any other applicable commercial terms related to the Advisory Services.
“Twilio IP” means any documentation, sample code, content, materials, or other intellectual property that is developed, conceived, or acquired by Twilio or its Affiliates (a) prior to this Agreement, or (b) during the Term (as defined below) of this Agreement that is not exclusively developed, conceived, or acquired for Customer.
“Twilio Personnel” means Twilio’s and its Affiliates’ employees, contractors, and subcontractors that assist in providing the Advisory Services to Customer.
2. Advisory Services
2.1 Performance. Twilio Personnel will provide the Advisory Services in accordance with this Agreement, the applicable Advisory Services Package, and the applicable Order Form. Twilio is responsible for (a) Twilio Personnel’s provision of the Advisory Services in accordance with this Agreement, the applicable Advisory Services Package, and the applicable Order Form, and (b) all matters related to Twilio Personnel’s employment, including, without limitation, compensation, benefits, and any statutory obligations. Twilio Personnel will provide the Advisory Services Monday through Friday (excluding holidays in the location where Twilio Personnel are located) between the hours of 9:00am and 5:00pm in the time zone where Twilio Personnel are located. The Advisory Services, and any communication between the parties and documentation related thereto, will be provided in English. Twilio will only allocate Twilio Personnel for the provision of the Advisory Services once Customer has executed the applicable Order Form. Customer will not cancel or terminate an executed Order Form for the Advisory Services if there are less than fourteen (14) days remaining until Twilio Personnel commence providing such Advisory Services. This Agreement does not govern or convey any right to use any other services provided by Twilio or an Affiliate of Twilio, including, without limitation, the services set forth in Section 2.2 (Out of Scope Services), which will be governed by a separate agreement between the parties.
2.2 Out of Scope Services. The Advisory Services and the Advisory Services Packages do not (a) provide access to Twilio’s communications platform, including, without limitation, Twilio’s application programming interfaces and any communication services used in connection with Twilio’s application programming interfaces; (b) include the development or deployment of any custom or production code, software, hardware, or other deliverables on behalf of Customer; (c) include customized integrations with or modifications to Twilio’s application programming interfaces or other services provided by Twilio; and (d) include user acceptance testing or quality assurance checks.
2.3 Completion. Twilio will provide written notice to Customer upon the completion of the Advisory Services provided in accordance with the applicable Advisory Services Package (“Completion Notice”). The Advisory Services provided in accordance with the applicable Advisory Services Package will be deemed completed upon Customer’s confirmation in writing of the same to Twilio via e-mail to expertservices@twilio.com. If Customer does not provide written confirmation of completion to Twilio within seven (7) days of the date of the Completion Notice, the Advisory Services provided in accordance with the applicable Advisory Services Package will be deemed completed.
2.4 Customer Responsibilities. Customer will comply with the terms of this Agreement, the applicable Advisory Services Package, and the applicable Order Form. Customer will cooperate reasonably and in good faith with Twilio Personnel in their provision of the Advisory Services including, without limitation: (a) providing Twilio Personnel sufficient resources, knowledgeable employees or staff of Customer, and safe working facilities with Internet access; (b) timely access to accurate and complete Customer Materials; (c) timely, accurate, and complete responses to inquiries or requests for feedback or information from Twilio Personnel; (d) appointing a Customer representative for each Advisory Services project to serve as a primary point of contact for Twilio Personnel and to make authorized decisions on behalf of Customer; and (e) actively participating in scheduled project meetings with Twilio Personnel. If Customer’s failure to comply with this Section 2.4 prevents Twilio from providing the Advisory Services, as determined by Twilio in its sole discretion, Twilio’s obligation to provide the Advisory Services will be excused until Customer remedies such failure and Twilio will not be responsible for any delays resulting therefrom. If any delay in the provision of the Advisory Services is caused by Customer and results in additional fees, Customer will pay such additional fees. Customer will not hire Twilio Personnel during the Term of this Agreement and for a period of twelve (12) months thereafter without the Twilio’s prior written consent; provided, however, this restriction will not apply in cases where Twilio Personnel independently respond to public advertisements that are not specifically directed at Twilio Personnel. Customer acknowledges the Advisory Services, the Twilio IP, and the Customer Documentation do not constitute legal advice and are provided to Customer “AS IS”. Customer is solely responsible for its reliance upon the Advisory Services, the Twilio IP, and the Customer Documentation.
2.5 Affiliates. An Affiliate of Twilio may provide the Advisory Services to Customer, subject to the terms of this Agreement, provided that such Affiliate of Twilio executes an Order Form directly with Customer. Twilio will (a) be responsible for its Affiliates’ provision of the Advisory Services, and (b) enforce the terms of this Agreement, the applicable Advisory Services Package, and the applicable Order Form on behalf of its Affiliates providing the Advisory Services. An Affiliate of Customer may receive the Advisory Services under this Agreement, provided that such Affiliate of Customer executes an Order Form directly with Twilio or an Affiliate of Twilio, as applicable. Customer represents and warrants that it has sufficient rights and the authority to make this Agreement binding upon each of its Affiliates. Customer and each of its Affiliates will be jointly and severally liable for the acts and omissions of such Affiliate in connection with this Agreement, and the applicable Advisory Services Package, and the applicable Order Form. Any claim from an Affiliate of Customer will only be brought against Twilio by Customer on behalf of such Affiliate.
3. Fees and Taxes
3.1 Fees. Customer will pay Twilio or the Affiliate of Twilio providing the Advisory Services, as applicable, the fees, including out-of-pocket expenses, set forth in the applicable Order Form. If Customer elects to add funds to its account using a credit card and uses such funds to pay the fees due, Customer is responsible for ensuring such funds cover the fees due. If the funds on Customer’s account do not cover the fees due, Twilio may suspend the provision of the Advisory Services until Customer’s account has sufficient funds to cover the fees due. If Customer is invoiced, Customer will pay the fees due within thirty (30) days of the date of the invoice, except as otherwise set forth in an Order Form. If Customer fails to pay an invoice and cure such failure within fifteen (15) days of the date Twilio provides Customer with written notice of the same, then Twilio may (a) assess, and Customer will pay, a late fee of the lesser of 1.5% per month or the maximum amount allowable by law, and (b) suspend the provision of the Advisory Services until all fees due are paid in full.
3.2 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, or withholding taxes (collectively, “Taxes”). Customer will pay Taxes in connection with this Agreement (excluding any taxes based on Twilio’s net income, property, or employees), unless the necessary tax exemption information is provided to Twilio or a valid tax exemption certificate is provided to Twilio via email to taxforms@twilio.com and approved by Twilio. Any exemption from paying Taxes will be on a going-forward basis. If the appropriate tax authority determines, at any time, that Customer is not exempt from paying Taxes, Customer will promptly pay such Taxes to Twilio, plus any applicable interest or penalties.
3.3 Payment Disputes. If Customer wishes to dispute any fees or Taxes, Customer must provide written notice of such dispute to Twilio within sixty (60) days of being billed. Where Customer is disputing any fees or Taxes, Customer must act reasonably and in good faith and will cooperate diligently with Twilio to resolve the dispute.
4. Ownership and Licenses. Twilio retains all right, title, and interest in and to Confidential Information (as defined below) of Twilio and the Twilio IP. Customer retains all right, title, and interest in and to Confidential Information of Customer, the Customer Materials, and the Customer Documentation. Customer grants Twilio the right and license to use the Customer Materials solely as necessary to provide the Advisory Services. Twilio grants Customer a perpetual, non-exclusive, non-sublicensable right and license to use the Twilio IP. Notwithstanding anything to the contrary in this Agreement, Twilio may use, for any purpose, any information in intangible form (e.g., ideas, concepts, techniques, know-how), which may be retained by Twilio Personnel providing the Advisory Services, to the extent such information does not contain any Confidential Information of Customer.
5. Confidentiality. “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. Confidential Information does not include any information which: (a) is publicly available through no breach of this Agreement or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without violation of Disclosing Party's rights; or (d) is independently developed by Receiving Party without use of or reference to Confidential Information of Disclosing Party. 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 5. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 5. 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. Receiving Party may disclose Confidential Information of Disclosing Party if so required under a regulation, law, subpoena, or court order (“Compelled Disclosure”), provided Receiving Party gives Disclosing Party notice 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. Disclosing Party will be entitled to seek injunctive and other equitable relief, without waiving any other rights or remedies available to it, for an actual or threatened breach of this Section 5 by Receiving Party.
6. Limitation of Liability. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE DISCLAIMER IN THE PRECEDING SENTENCE WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER OR ITS AFFILIATES UNDER THE APPLICABLE ORDER FORM FOR THE ADVISORY SERVICES 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. THIS SECTION 6 WILL NOT APPLY TO CUSTOMER’S AND ITS AFFILIATES’ BREACH OF SECTION 3 (FEES AND TAXES).
7. Term and Termination
7.1 Agreement Term. This Agreement will commence on the Effective Date and will continue in effect until terminated in accordance with Section 7.2 (Termination) (“Term”).
7.2 Termination. Either party may terminate this Agreement for convenience by providing written notice of termination no less than thirty (30) days prior to the intended effective date of termination, provided that all Advisory Services being provided under this Agreement are complete as of such intended effective date of termination. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to remedy such breach within fifteen (15) days of the date of written notice of such breach. 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. The following provisions, in addition to this sentence, will survive any termination of this Agreement: Section 3 (Fees and Taxes), Section 4 (Ownership and Licenses), Section 5 (Confidentiality), Section 6 (Limitation of Liability), and Section 8 (General).
8. General
8.1 Assignment. Neither party may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent (not to be unreasonably withheld or delayed), unless a party is assigning this Agreement to (a) a successor to all or substantially all of its assets or business, or (b) an Affiliate. Any attempted assignment or transfer by either party in violation of this Section 8.1 will be void. Subject to the foregoing, this Agreement will be binding on the parties and their respective successors and permitted assigns.
8.2 Notices. Notices to Twilio will be provided via email to legalnotices@twilio.com. Billing-related notices will be provided via email to Customer to the relevant billing contact(s) designated by Customer in its account. All other notices to Customer will be provided via email to Customer’s representative designated for the applicable Advisory Services project.
8.3 Governing Law and Attorneys’ Fees. This Agreement will be governed by and interpreted according to the laws of the applicable state or country identified below without regard to conflicts of laws and principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Except as provided in Section 8.4 (Dispute Resolution), any action arising out of this Agreement will be instituted in the applicable courts identified below and the parties hereby consent to the personal jurisdiction of these courts. In the event of any adjudication of any dispute under this Agreement, the prevailing party in such action will be entitled to reimbursement of its attorneys’ fees and related costs by the non-prevailing party.
| If Customer is domiciled in: | Governing law: | Courts with personal jurisdiction: |
| Any country outside of the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City other than Japan | State of California | State or federal courts of San Francisco, California, United States of America |
| Any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City | England and Wales | Courts of London, England |
| Japan | Japan | Tokyo District Court |
8.4 Dispute Resolution. In the event of any dispute, claim, or controversy in connection with this Agreement (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve a Dispute. If the parties are unable to resolve a Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in (a) San Francisco, California if Customer is domiciled in any country outside of the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City or (b) London, England if Customer is domiciled in any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City.
8.5 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 of a cause, existing or future, that is beyond the control and without negligence of such party (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.
8.6 Entire Agreement. Twilio is providing the Advisory Services as an independent contractor and not as an employee, agent, joint venturer, or partner of Customer. Neither party has the authority to bind or act on behalf of the other party in any capacity or circumstance whether by contract or otherwise. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings whether oral or written. 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. Any modification to or waiver of any provision under this Agreement will be in writing and executed by both parties hereto. Any terms and conditions stated on Customer’s vendor registration form, registration portal, purchase order, or similar document will be null and void even if accepted or executed by Twilio. In the event of a conflict between the terms of this Agreement and the applicable Order Form, the terms of the applicable Order Form will control. 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.
8.7 Additional Terms. The following terms will apply if Customer is domiciled in Japan:
8.7.1 No Binding Arbitration. Section 8.4 (Dispute Resolution) above is hereby replaced in its entirety with the following:
In the event of any dispute, claim, or controversy in connection with this Agreement (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve a Dispute. If the parties are unable to resolve a Dispute within thirty (30) days or within such other time period as the parties may agree in writing, the parties may commence litigation proceedings.
8.7.2 Anti-Social Forces. Each party represents and warrants that it is not an anti-social force (meaning here and hereinafter, gangsters, right-wing groups, anti-social forces, and others equivalent thereto) and each party further represents and warrants that it does not have any exchange or involvement with anti-social forces, such as cooperation or involvement in the maintenance, operation or management of anti-social forces, through funding or other means.
Exhibit A: Advisory Services Packages
The terms for the Advisory Services Packages set forth below are subject to this Agreement. Any capitalized terms used but not defined in the terms for the Advisory Services Packages set forth below will have the meanings provided in this Agreement. Customer will receive the applicable Advisory Services Package identified in the applicable Order Form.