EFFECTIVE July 07, 2020

From this date, Electric Imp’s Terms of Service follow those of Twilio, Inc., which can be read at https://www.twilio.com/legal/tos. In addition to Twilio’s Terms of Service, the following Terms also apply:

APPENDIX FOR IOT SERVICES

This Appendix is added to the Twilio Terms of Service at https://www.twilio.com/legal/tos or Master Services Agreement or other similar agreement entered between Twilio and Customer (the “Agreement”), and this Appendix is subject in all respects to the terms of the Agreement.  As context allows, references in the Agreement to the term “Services” will be deemed to include the “IoT Services” hereunder.  If anything in this Appendix is in addition to or conflicts with the terms of the Agreement, then the terms of this Appendix shall control to the extent of such supplementation or conflict.

All capitalized terms that are not defined in this Appendix have the meaning given in the Agreement.

1. IoT SERVICES AND SUPPORT.

1.1. IoT Services. Subject to the terms and conditions of this Appendix and the Agreement and payment of applicable fees, Twilio will use commercially reasonable efforts to provide the IoT Services to Customer. To enable the IoT Services, Customer will be required to register an account and complete the Blessing process for each Customer Device, in accordance with the Documentation.

1.2. IoT Support Terms. Twilio will use commercially reasonable efforts during Twilio’s business hours (9 a.m. – 5 p.m. PST), excluding weekends and holidays, to provide Customer with support through online customer support located at https://support.electricimp.com.

1.3. IoT Support Disclaimer. IoT Support is provided “AS IS”, with no warranty or representation of any kind. Twilio expressly disclaims any liability for the IoT Support, including the accuracy, completeness or usefulness of any of the recommendations provided to Customer.

1.4. impOS   Support. Twilio will only provide support for the most current version of the impOS (“Current Release”) and the previous version (“Previous Sequential Release”). The Previous Sequential Release will be supported by Twilio for a period of six (6) calendar months after Twilio makes available the Current Release, provided, however, that for security breaches or critical technical requirements, Twilio may decrease such 6-month period, to ensure the security of the platform.

1.5. Updates. Twilio reserves the right to implement new versions of, updates or upgrades to the Software and IoT Services, including, without limitation, modifications to the design, operational method, technical specifications, systems, and other functions of the Software and IoT Services, at any time and without prior notice to Customer.

1.6 For avoidance of doubt, this Section 1  description of “IoT Support Terms” supersedes the definition of “Support Terms” given in the Agreement.

2. LICENSE; RESTRICTIONS AND CONDITIONS.

2.1. License. Subject to the terms and conditions of this Agreement and payment of the applicable fees, Twilio hereby grants Customer a limited, royalty-free, non-transferable, non-sublicensable and nonexclusive right and license to: (a) use the Software solely in connection with the IoT Services; (b) distribute the impOS (solely to end users and Customer’s Subdistributors) as part of the Authorized Hardware and Customer Application(s) and Device(s); and (c) make copies of the BlinkUp™ SDK in object code form only for the sole purpose of producing and distributing Customer Applications and Customer Devices to end users and Subdistributors. No rights or licenses are granted by Twilio except as expressly set forth in this Agreement. Twilio may revoke the license in the event of Customer’s violation of the scope of the license grant or license restrictions below.

2.2. Restrictions. The provisions in the Agreement regarding the Twilio Acceptable Use Policy apply to the IoT Services under this Appendix.

2.3. Conditions of Use. Customer represents, covenants, and warrants that it will use the Software and IoT Services only with the Authorized Hardware and only as part of Customer Applications and Customer Devices, and that its use will be in compliance with all applicable laws.  Twilio may, but has no obligation to, monitor the Firmware, Agents or other software provided by Customer, the functionality of Customer Devices or Customer’s use of the IoT Services or the Authorized Hardware. Twilio may remove Firmware, Agents or any such software and suspend immediately any use of the IoT Services that Twilio reasonably believes may be (or are alleged to be) in violation of any applicable law or terms of this Agreement,  (including that Twilio may remotely uninstall any  Software on any Customer Devices as a result thereof, at which time all of Customer’s rights to use such Software will automatically terminate).

2.4. Inappropriate Uses. Customer will not use the BlinkUp SDK with any software, hardware or other materials other than with the Customer Devices, Customer Applications and the Authorized Hardware. In addition, Customer will not use the Software, IoT Services, the Authorized Hardware and any other part of the imp Technology in a way that results or is likely to result in a breach of the Agreement including a breach of the Twilio Acceptable Use Policy or breach of trade compliance regulations. or any use in which the use or failure of any part of the imp Technology could lead to death, serious bodily injury, property or environmental damage.

2.5. Compatibility. Customer shall be responsible for adhering to the specifications provided by Twilio with respect to the IoT Services, Software and the Authorized Hardware (available at the Twilio Electric Imp Dev Center currently at https://developer.electricimp.com), including without limitation specifications related to hosting the Authorized Hardware on Customer Devices and Firmware, developing and bundling the Firmware and Agents and integrating the Software, libraries and APIs with Customer Devices.  Customer shall be responsible for providing its end users with documentation on how to use the BlinkUp SDK, including minimum mobile device and web browser requirements, to enable connectivity to the IoT Services. To ensure that proper warnings and other notices are provided to the end users of the BlinkUp SDK, Customer will distribute to end users the BlinkUp SDK end user documentation provided by Twilio or Customer’s documentation that is approved in writing in advance by Twilio.

Customer acknowledges that the IoT Services and the BlinkUp SDK are not compatible with all mobile device operating systems and web browsers and that Customer will not attempt to use the IoT Services or the BlinkUp SDK in connection with mobile operating systems and web browsers that Twilio does not support. Customer also acknowledges that Twilio may change, deprecate or republish the APIs, libraries or IoT Services from time to time, and that it is Customer’s responsibility to ensure that API calls or requests Customer makes are compatible with the then-current APIs. Twilio will endeavor to inform Customer in advance of any API or library changes, but Twilio is under no obligation to do so. Twilio reserves the right to limit the number and/or frequency of API requests and bandwidth usage in a given period in its reasonable discretion.

3. BILLING INFORMATION. Unless the parties expressly agree otherwise, Twilio is only responsible for storing anonymous usage information pertaining to Customer Device activity, including amounts of Customer Data traffic (but not actual Customer Data), Blessing and inactivity and other information necessary for Twilio’s billing purposes, for a period of sixty (60) days after such billing information is first obtained by Twilio.

4. CUSTOMER RESPONSIBILITIES. Customer will comply with its obligations in the Agreement and this Appendix, including the following responsibilities.

4.1. Equipment. Customer acknowledges and agrees that it will be solely responsible for obtaining and maintaining its Equipment, and for obtaining all applicable permits and licenses.

4.2. Multi-User Access. As part of the IoT Services, Customer may authorize third-party users (e.g., third party developers) to access and contribute to Customer’s account on behalf of the Customer (“MultiUser Access”). If Customer allows such Multi-User Access, Customer shall remain solely responsible for such third-party users, and must ensure that such  third party abides by the terms of this Agreement, and Customer shall indemnify Twilio for any claims arising out of such third party’s use of Customer’s account.

4.3. Customer Data. As between Twilio and Customer, Customer owns and is solely responsible for all Customer Data, including the accuracy, quality, integrity, and availability of Customer Data. Unless agreed otherwise in writing, Twilio will not back up or store Customer Data that passes through the IoT Services (via the APIs, libraries or otherwise), and Customer shall remain solely responsible for backing up or storing Customer Data. Customer agrees that Twilio has no responsibility or liability for Customer Data, including any liability for availability of such data. To the extent Customer configures the IoT Services to store Customer Data, Twilio may impose reasonable data storage limits. In addition, Customer is solely responsible for securing any consent (to the extent necessary) from end users granting Customer permission to access and use any Customer Data with respect to each end user, including, if applicable, users’ personal data or personally identifiable information (“PII”). Twilio does not recommend the uploading, collecting, or storing of any Customer Data, including PII, as part of the IoT Services, and Twilio will not be responsible or liable for any loss or security breach with respect to Customer Data. The  IoT Services will be considered to be “Services” under the Data Protection Addendum. Customer will maintain industry-standard administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data, and will comply with all applicable privacy and data security laws and regulations. Customer will provide and adhere to a privacy policy for Customer Applications that describes to end users of Customer Applications what user information Customer collects (such as PII, login information and Customer Device usage data) and how Customer uses and shares such information. Twilio will only use Customer Data for the purpose of providing the IoT Services to Customer and otherwise in accordance with Twilio’s  Privacy Policy, and Customer hereby consents to Twilio’s processing and use of Customer Data in accordance with  the Privacy Policy.

5. TRADEMARKS. The name and logos used for these IoT Services and imp Technology are trademarks and service marks of Twilio. Customer shall not alter the branding of Twilio, BlinkUp and any other proprietary notices of Twilio without the express prior approval of Twilio. This Agreement does not include any right for Customer to use any trademark, service mark, trade name or any other mark of Twilio or any other party or licensor. All uses of the Twilio trademarks and goodwill associated therewith shall inure to the benefit of Twilio.

6. INTELLECTUAL PROPERTY.

6.1. Twilio Intellectual Property. Any Twilio software embedded on the Authorized Hardware and any mobile, desktop or web applications, development environments, APIs, the BlinkUp Software, libraries and any other software or documentation related to the IoT Services (or upon which the IoT Services are based), including any improvements, enhancements, or modifications thereto, contain proprietary and confidential information of Twilio that is protected by applicable intellectual property and other laws. Twilio owns all right, title and interest in and to the impOS, Software, IoT Services, Documentation, and all other parts of the imp Technology and all intellectual property rights therein. No rights or licenses are granted by Twilio to Customer except as expressly set forth in this Agreement. All other rights are expressly reserved by Twilio.

6.2. Twilio acquires no right, title or interest from Customer  to the Customer Data, the Firmware or Agents.

7. FEES. Customer will pay Twilio the fees (“Fees”) set forth in an applicable Order Form which shall be governed by this Agreement unless otherwise agreed by the parties. All Fees are non-cancelable and non-refundable, and payable in U.S. Dollars. Twilio reserves the right to change the Fees in any renewal Order Form. Unless otherwise provided in the Order Form, a Customer Device must be Blessed within twelve (12) months of the Agreement/Order Form Effective Date; otherwise, Customer forfeits the right to use the IoT Services for such Customer Device(s). Any pre-paid but unused IoT Services may not be rolled over into a new Term and any pre-paid unused fees will not be refunded in the event of the expiration of the IoT Services. In the event Customer’s use of the IoT Services exceeds the service capacity indicated on an applicable Order Form, Customer shall be billed and agrees to pay for the excess usage over the Service Capacity as described on the Order Form. Upon expiration or termination of this Agreement and applicable Order Forms, any unused imp months or IoT Services Term Plans will immediately expire and shall not be refunded. Twilio reserves the right to deny or suspend the IoT Services due to unpaid or delinquent Fees.

8. INDEMNIFICATION. In addition to the obligations of indemnification stated in the Agreement to which this Appendix is attached, the Indemnifiable Claims for which Customer is responsible includes claims that arise out of or relate to Customer Data, Customer Equipment, Customer Device(s), or Customer Application(s).

9. LIMITED WARRANTY AND DISCLAIMER. The limited warranties, remedies and disclaimers on the part of Twilio set forth in the Agreement, shall apply to the IoT Services. EXCEPT AS EXPRESSLY STATED, THE IoT SERVICES, SOFTWARE AND IMP TECHNOLOGY ARE PROVIDED “AS IS.”

10. EXPORT CONTROLS. The Section of the Agreement on Export Controls is modified to add the following: For clarity, Customer is solely responsible for compliance related to the manner in which Customer exports and uses the imp Technology and the Authorized Hardware, including without limitation Customer’s distribution of Customer Devices.

11. TERM AND TERMINATION.

11.1. Termination for Cause. In the event of termination by Customer for Twilio’s uncured material breach in the provision of the IoT Services under this Appendix,  Customer’s sole and exclusive remedy is that  Twilio will  refund to Customer pre-paid fees on a pro-rata basis, for  IoT Services that have not been provided as of the termination date.

11.2. Effect of Termination. Upon expiration or termination of this Agreement, Customer will cease distributing any Customer Devices that contain the Authorized Hardware, impOS or connect to the IoT Services. In the event of expiration or termination of this Appendix (except in the event of termination of the Agreement by Twilio for Customer’s breach, Twilio will continue to provide the IoT Services for Customer Devices that were purchased by end users and activated prior to the date of such expiration, and all terms and conditions of this Agreement will survive with respect to such Customer Devices in each case until (i) in the case of a pay-as-you-go order, the expiration of the imp months for such Customer Devices, or (ii) in the case of a term payment order, the expiration of the term of the imp plan for such Customer Devices. Upon any expiration or termination of the Agreement, (a) any unused pre-paid IoT Services will immediately expire and shall not be refunded; (b) any Fees still outstanding pursuant to  any Order Form(s) shall become immediately due and payable; and (c) Customer Device(s) integrated with Authorized Hardware will continue to be able to use the impOS and have access to the IoT Services, provided that after expiration of the applicable IoT Services term with respect to any such Customer Device(s), Twilio will no longer be obligated to provide any updates to the impOS or other Software or provide the IoT Services, any support, or anything else with respect to such Customer Device(s).

11.3. Survival. The terms of this Appendix that by their nature should survive termination or expiration of the Agreement.

12. DEFINITIONS.

“Active” means a Customer Device that becomes connected to the IoT Services upon BlinkUp.

“Agent” means the software developed by Customer that is hosted in the imp Cloud.

“Authorized Hardware” means hardware with an embedded impOS (or an embedded encryption/impOS activation key, whichever is applicable) that is manufactured by a third-party manufacturer authorized to manufacture such hardware pursuant to a written agreement between Twilio and such manufacturer. Authorized Hardware includes imp Module.

“Blessing” or “Blessed” means the process of bonding of a Customer Device using the Customer’s unique ID with the IoT Services.

“BlinkUp™” means the standard process used to provision and/or enroll  a Customer Device to IoT Services.

“BlinkUp™ SDK” means a software development kit provided by Twilio to Customer under this Agreement to enable connectivity and enrollment to the IoT Services via Customer Applications.

“Customer Application(s)” is modified to include, for purposes of this Appendix, a service or application, including mobile and web applications, Firmware  and Agents offered by Customer that integrates the IoT Services and the Authorized Hardware, and that may be  part of a Customer Device.

“Customer Data” means information related to the Customer or the end user that passes to or from the Authorized Hardware, Firmware, and Agents as part of the IoT Services.

“Customer Device” means a product offered by Customer to an end user that integrates the Authorized Hardware, is Blessed according to the Documentation and connects to the IoT Services.

“Documentation” in the Agreement is modified to include the information at https://developer.electricimp.com for purposes of this Appendix.

“end user” means the end user of a Customer Device.

“Equipment” means Customer equipment and ancillary devices needed to connect to, access or otherwise use the IoT Services.

“Firmware” means software developed by Customer that is included on a Customer Device and is bundled with an Agent in the imp Cloud, which together is designed to connect to the IoT Services through the Authorized Hardware.

“impCloud™” means the supporting service which connects the devices running impOS, Agents and the API access.

“impModule™” means a module that enables a Customer Device to connect to the IoT Services. More details on the imp Module can be found at the Twilio Electric Imp Dev Center available at https://developer.electricimp.com.

“impOS™” means Twilio’s proprietary operating system, including related software libraries, that enables the Authorized Hardware and agents to be connected to the IoT Services.

“imp Technology” will refer collectively to Twilio proprietary technology provided to Customer under this Agreement, including without limitation: the impOS, the imp Cloud, the Software, the IoT Services, IoT Support, imp Module, API and Integrated Development Environment (IDE), Ops Console, Build API, BlinkUp SDK, the Documentation and the libraries, and all related files and applications and as further described in the Order Form.

“IoT Services” means the connectivity services provided by Twilio to Customer under this Agreement, as further defined in an Order Form.

“Software” means Twilio’s proprietary impOS, the Documentation, mobile applications, development environments, APIs, libraries, the BlinkUp SDK, embedded software, server and back-end software, libraries and any other software or files related to the IoT Services (or upon which the IoT Services are based) that is licensed to Customer under this Agreement and as further described in an Order Form.

“Subdistributors” means parties who are authorized by Customer to distribute Customer Devices to end users or other distributors.