Last updated August 1, 2020
BY CLICKING ON THE “I AGREE” BUTTON OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU WILL NOT BE GIVEN ACCESS TO THE SOFTWARE UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU HAVE PAID A LICENSE FEE FOR USE OF THE SOFTWARE AND DO NOT AGREE TO THESE TERMS, YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND PROVIDED YOU DO NOT USE THE SOFTWARE.
IF YOU ARE USING THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN LICENSE AGREEMENT WITH FLEXFIG FOR USE OF THE SOFTWARE, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.
Additional Services Agreement: means an agreement to engage FLEXFIG to perform additional development services related to the Software, pursuant to the terms of the Master Service Agreement.
Effective Date: means the earlier of the date on which you are invoiced for the Software or the date on which the Software is first made available to you.
Equipment: means the hardware and systems owned or under the control of the Customer upon which the Software and Third-Party Software is to reside;
Master Service Agreement: means an agreement pursuant to which FLEXFIG performs additional development services related to the Software.
Order Form: means any FLEXFIG order form, quote, account creation, or order confirmation which references this Agreement. Each Order Form which references this Agreement shall be deemed a part of this Agreement. This Agreement is binding on you whether or not you executed an Order Form with FLEXFIG.
Subscription Term: means the period that Customer has the right to use the Software specified in the Order Form including the initial term and any renewal terms.
Software: means the FLEXFIG software product(s) provided in connection with this Agreement in object code form (or as otherwise specified in any related Order Form). “Software” shall also include any releases provided to or purchased by you under any separate Additional Services Agreement you may enter into with FLEXFIG. Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software”.
Technology Systems: means software, computer networks, telephone systems, and other components comprising Customer’s technology infrastructure
Third-Party Software: means software required to enable the Software, that is licensed from a Third-Party.
2.1 Grant of License. Subject to all of the terms and conditions of this Agreement, FLEXFIG grants you a non‐transferable, non‐sublicensable, non‐exclusive license to use the Software, but only in accordance with (i) the Documentation, (ii) this Agreement and (iii) any user, computer, field of use or other restrictions set forth in the applicable Order Form or otherwise specified upon purchase. Unless a license term is specified in the applicable Order Form, the above license will be perpetual. If you have not purchased a paid license and paid the applicable license fee for use of the Software, then you are granted only a trial license in accordance with Section 2.2 immediately below.
FLEXFIG shall deliver the Software and Documentation electronically using cloud technologies. All licenses shall commence, and delivery shall be deemed to occur, as of the Effective Date or, if later, such date on which the Software and license keys are first made available to you.
2.2 Trial License. Notwithstanding the foregoing, if you select to install the Software on an evaluation basis, you will be authorized to access and use the Software only for a limited evaluation period of fourteen (14) days, beginning on the day that you first receive the Software (the “Evaluation Period”). Unless you pay the applicable license fee for the Software and FLEXFIG issues you a license key in exchange, the Software may become inoperable and, in any event, your right to use the Software automatically expires at the end of the Evaluation Period. If you pay the applicable license fee for the Software, your right to use the Software with the number of user licenses for which you have paid the applicable license fee will continue for the term of the license you have purchased, subject to the terms of this Agreement. Your license to use the Software during the Evaluation Period is limited to using the Software internally at your designated evaluation site, solely to test the Software in an evaluation environment. Any other use of the Software during the Evaluation Period is expressly prohibited.
2.3 License Restrictions. You shall not and shall not allow any third party to: (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions; (b) distribute, sell, sublicense, rent, lease or use the Software or any portion thereof for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright or other notices contained in the Software; (d) modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by FLEXFIG; or (e) publicly disseminate performance information or analysis including, without limitation, benchmarks from any source relating to the Software.
2.4 Beta Services. From time to time, FLEXFIG may offer software identified as beta, pilot, developer preview, non-production, evaluation or by a description of similar import (“Beta Software”). You may accept or decline Beta Services. If accepted, Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available. FLEXFIG may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. BETA SERVICES MAY BE TERMINATED AT ANY TIME. FLEXFIG DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO USER DATA. ANY CONFIGURATIONS OR USER DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR USER, MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.
2.5 Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, FLEXFIG and its suppliers have and will retain all rights, title and interest including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights in and to the Software and all copies, modifications and derivative works thereof including any changes which incorporate any of your ideas, feedback or suggestions. You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
3. User Responsibilities.
3.1 Equipment Compatibility. It is your responsibility to ensure that Equipment is compatible with the Software and any Third-Party Software. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other auxiliary equipment as may be necessary to connect to, access, and use the Software.
3.2 Access to Technology Systems. In order to enable FLEXFIG to successfully install the Software, you shall provide FLEXFIG with access to your Technology Systems. At all times, FLEXFIG shall take all commercially reasonable measures necessary to protect your Technology Systems from any harm or damage excepting normal wear and tear, and shall use the same care to prevent damage to such Technology Systems as it uses with respect to its own proprietary technology systems which shall not be less than the care a reasonable person would use under similar circumstances. FLEXFIG shall take reasonable measures to avoid all actions that may compromise the security of your Technology Systems such as introducing malicious programs such as viruses, worms, Trojan horses, e-mail bombs, and backdoor access.
3.3 Use of Software. You agree to use the Software in accordance with all operating instructions and agreed procedures and not to change its configuration without the approval of FLEXFIG. You will not alter or modify the source code of the Software, transfer the Software or decompile or disassemble the source code of the Software. You also agree to only combine or incorporate the source code into the Third Party Software required to enable the Software.
3.4 Copies of Data. You will keep full security copies of all data processed by the Software. FLEXFIG will not be liable for any loss of data.
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, FLEXFIG and its suppliers have and will retain all rights, title and interest including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights in and to the Software and all copies, modifications and derivative works thereof including any changes which incorporate any of your ideas, feedback or suggestions. You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
4. Third-Party Services.
FLEXFIG may need to interact with Third-Party Software in order to provide the Software to you, including but not limited to Twilio and Twilio Flex. Third-Party Software may have its own terms and conditions of use and privacy policies, and your use of Third-Party Software will be governed and subject to such terms and conditions and privacy policies. Customer understands and agrees that FLEXFIG does not endorse and is not responsible or liable for the availability, performance, behavior, features, or content of any Third-Party Software, or for any transaction you may enter into with the provider of any such Third-Party Software, nor does FLEXFIG warrant the compatibility or continuing compatibility of the Third-Party Software with the Software.
5. California Consumer Privacy Act of 2018
You and FLEXFIG acknowledge and agree that FLEXFIG is a “service provider” as defined by the California Consumer Privacy Act of 2018 (“CCPA”) (Cal. Civ. Code § 1798.100 et seq.). This means that FLEXFIG processes personal information on your behalf when you disclose to us the personal information of your consumers (“Customers’ Contact Data”) in order to use our Software.
When we process Customers’ Contact Data on your behalf, we agree that we will not:
- Retain, use, or disclose Customers’ Contact Data we process in connection with the Software for any purpose other than for performing the services in this Agreement and your instructions;
- Use or process Customers’ Contact Data for commercial purposes or direct marketing;
- Sell or promote the sale of Customers’ Contact Data; and
- Disclose or transfer Customers’ Contact Data to unauthorized personnel or parties, or outside the direct business relationship between you and FLEXFIG.
6.1 Orders and Fees. You shall pay all fees associated with the Software licensed and any services purchased hereunder as set forth in the applicable Order Form. Customer will pay all undisputed amounts specified in an Order Form. Unless otherwise specified in the applicable Order form all amounts payable under this Agreement are denominated in U.S. dollars and Customer will pay all such amounts in U.S. dollars), and fees are based on subscriptions purchased and not actual use of the Software. FLEXFIG will provide Customer with written notice of any increase to subscription fees at least 30 days prior to the end of any Subscription Term. For all quotations provided, prices are applicable for 30 days or such time as specified in the quotation.
6.2 Invoicing and Payment. The fees will be invoiced upon execution of the applicable Order Form and, for each renewal term, at the commencement of such renewal term. Unless otherwise specified on the applicable Order Form, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Fees for each renewal term are due on the first day of such renewal term. If Customer provides FLEXFIG with credit card information, it authorizes FLEXFIG to charge such credit card for all items on the applicable Order Form and for any renewal term fees. Customer is responsible for providing complete and accurate billing and contact information and promptly notifying FLEXFIG of any changes to such information.
6.3 Late Payments. Any undisputed amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. If any undisputed amount is not paid when due, FLEXFIG may condition future subscription renewals and Order Forms on payment terms that are shorter than those specified in this section.
6.4 Taxes. Fees do not include any taxes, levies, duties or similar assessments of any nature including value-added, sales, use or withholding taxes (the “Taxes”). Customer is responsible for paying all Taxes under this Agreement. If FLEXFIG has the legal obligation to pay or collect Taxes under this section, FLEXFIG will invoice Customer unless Customer provides FLEXFIG with a valid tax exemption certificate. FLEXFIG is responsible for taxes assessed against it based on its income, property or employees.
6.5 Suspension. FLEXFIG may immediately suspend Customer’s account and access to the Software if (i) Customer fails to make payment due within 10 business days after FLEXFIG has provided Customer with written notice of such failure; (ii) Customer violates this Agreement; or (iii) if reasonably required to prevent unauthorized access to Customers’ Contact Data. Any suspension by FLEXFIG of Customer’s access to the Software under the preceding sentence will not relieve Customer of its payment obligations.
7. Term of Agreement.
7.1 Subscription Term. The Subscription Term for each subscription shall be as specified in the applicable Order Form. Subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or for one year (whichever is shorter) unless: 1) otherwise provided on an Order Form; or 2) either party provides written notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term.
7.2 Agreement Term and Termination. This Agreement starts on the Effective Date and continues until all subscriptions have expired unless it is terminated earlier according to this section. Either party may terminate this Agreement including all related Order Forms if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party and not dismissed within sixty (60) days. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software and FLEXFIG will be immediately uninstalled from your Twilio account.
7.3 Survival. Sections 2.3 License Restrictions, 3 Ownership, 4 Payment, 5 Term of Agreement, 6.3 Disclaimer of Warranties, 9 Limitation of Remedies and Damages, 11 Confidential Information, 13 Export Compliance and 14 General shall survive any termination or expiration of this Agreement.
7.4 Survival. Sections 2 License, 8 Limited Warranty and Disclaimer, 11 Limitation of Remedies and Damages, 12 Indemnification, 13 Confidential Information and 15 General shall survive any termination or expiration of this Agreement.
8. Limited Warranty and Disclaimer.
8.1 Limited Warranty. FLEXFIG warrants to you that for a period of thirty (30) days from the Effective Date the “Warranty Period” the Software shall operate in substantial conformity with the Documentation. FLEXFIG does not warrant that your use of the Software will be uninterrupted or error‐ free or that any security mechanisms implemented by the Software will not have inherent limitations. FLEXFIG’s sole liability and your exclusive remedy for any breach of this warranty shall be, in FLEXFIG’s sole discretion, to use commercially reasonable efforts to provide you with an error‐ correction or work‐around which corrects the reported non‐conformity, or if FLEXFIG determines such remedies to be impracticable within a reasonable period of time, to terminate this Agreement and refund a prorated portion of the subscription fees paid for the Software. Your initial setup and configuration fees are nonrefundable FLEXFIG shall have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period.
8.2 Exclusions. The above warranty shall not apply: (i) if the Software is used with hardware or software not specified in the Documentation; (ii) if any modifications are made to the Software by you or any third party; (iii) to defects in the Software due to accident, abuse or improper use by you; or (iv) to Software provided on a no charge or evaluation basis.
8.3 Disclaimer of Warranties. THIS SECTION 8 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS”. NEITHER FLEXFIG NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, CONDITIONS OR UNDERTAKINGS, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
9. Support Plans.
FLEXFIG shall provide support plan services, if any, as separately purchased by you and specified in the applicable Order Form. All support plans shall be provided pursuant to FLEXFIG’s standard service terms which are available upon request from FLEXFIG.
10. Training Services.
FLEXFIG shall provide training services, if any, of training services referenced in the applicable Order Form. All Professional Services shall be provided pursuant to FLEXFIG’s standard service terms which are available upon request from FLEXFIG.
11. Limitation of Remedies and Damages.
11.1 NEITHER YOU NOR FLEXFIG, INCLUDING FLEXFIG’S SUPPLIERS, SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THIS SECTION 9.1 SHALL NOT APPLY TO YOU WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “GRANT OF LICENSE,” “LICENSE RESTRICTIONS” OR “CONFIDENTIAL INFORMATION”.
11.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, FLEXFIG AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO FLEXFIG UNDER THIS AGREEMENT.
11.3 The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
FLEXFIG shall defend you from and against any claim by a third party alleging that the Software when used as authorized under this Agreement infringes a U.S. patent, copyright, or trademark and shall indemnify and hold you harmless from and against any damages and costs awarded against you or agreed in settlement by FLEXFIG (including reasonable legal fees) resulting from such claim, provided that FLEXFIG shall have received from you:
- prompt written notice of such claim but in any event notice in sufficient time for FLEXFIG to respond without prejudice;
- the exclusive right to control and direct the investigation, defense, and settlement, if applicable, of such claim; and
- all reasonable necessary cooperation from you. If your use of the Software is or in FLEXFIG’s opinion is likely to be enjoined, if required by settlement or if FLEXFIG determines such actions are reasonably necessary to avoid material liability, FLEXFIG may, in its sole discretion:
- substitute for the Software substantially functionally similar programs and documentation;
- procure for you the right to continue using the Software; or if (a) and (b) are not commercially reasonable,
- terminate the Agreement and refund to you a prorated portion of the subscription fees paid for the Software. The foregoing obligations of FLEXFIG shall not apply:
- if the Software is modified by any party other than FLEXFIG, but solely to the extent the alleged infringement is caused by such modification;
- if the Software is combined with products or processes not provided or authorized by FLEXFIG, but solely to the extent the alleged infringement is caused by such combination;
- to any unauthorized use of the Software;
- to any unsupported release of the Software;
- to any third‐party code contained within the Software; or
- if you settle or make any admissions with respect to a claim without FLEXFIG’s prior written consent. THIS SECTION 12 SETS FORTH FLEXFIG’S AND ITS SUPPLIERS’ SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
13. Confidential Information.
Any software, documentation or technical information provided by FLEXFIG or its representatives shall be deemed “FLEXFIG Confidential Information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any FLEXFIG Confidential Information. You acknowledge that disclosure of FLEXFIG Confidential Information would cause substantial harm to FLEXFIG that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, FLEXFIG shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
14. Customer Acknowledgement.
You agree that FLEXFIG may disclose you as a customer of FLEXFIG.
15.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. FLEXFIG may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of FLEXFIG’s assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without FLEXFIG’s written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
15.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
15.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Georgia without regard to conflicts of laws provisions thereof. The jurisdiction and venue for actions related to the subject matter hereof shall be the courts of the State of Georgia and both parties hereby submit to the personal jurisdiction of such courts.
15.4 Notices and Reports. Any notice or report hereunder shall be in writing. If to FLEXFIG, such notice or report shall be sent to FLEXFIG at the address above to the attention of “Legal Department”. If to you, such notice or report shall be sent to the address you provided upon placing your order. Notices and reports shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered US mail return receipt requested; or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
15.5 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
15.6 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or in any other business form employed by you will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect. Notwithstanding the foregoing, if you have entered into a separate written license agreement signed by FLEXFIG for use of the Software, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement.
15.7 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
15.8 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, pandemics, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
15.9 Third‐Party Code. If designated in the Documentation, the Software may contain or be provided with certain third‐party code including code which may be made available to you in source code form. Ownership, use, warranty and modification rights with respect to any such designated code shall be as expressly set forth in the Documentation.