1. Definitions
1.1. The following definitions shall have the following meanings in these End User Terms:
Acceptable Use Policy means any acceptable use policy applicable to the use of the Software Services, including as referred to in these End User Terms and in the Sub-processor List, and in the case of the Twilio Services, the Twilio Terms of Service (https://www.twilio.com/en-us/legal/tos), Twilio Acceptable Use Policy at https://www.twilio.com/legal/aup, and specifically related to Twilio Flex usage, the Fair Usage Policy at https://www.twilio.com/en-us/legal/service-country-specific-terms/flex-fup and the following terms (if applicable) relating to the use of any Third Party Services provided by Ciptex in connection with the Twilio Services, as may be updated from time to time.https://www.twilio.com/en-us/legal/service-country-specific-terms, as may be updated from time to time.
Beta Offerings means services that are identified as alpha, beta, not generally available, limited release, developer preview, or any such similarly designated services, products or features offered by Ciptex or a Third Party Provider.
Documentation means the documentation, usage guides and policies, for or relating to and of the Software Services, including in respect of the Twilio Services, the documentation at https://www.twilio.com/docs.
Malicious Code means code, files, scripts, agents, or programs intended to do harm, including viruses, worms, time bombs and Trojan horses.
RACE Software Solution means the Ciptex customer engagement platform which enables the Customer to communicate with End Users through different communication channels, where purchased by the Customer as part of the Software Services, as set out in the Order Form.
Service Usage Data means any data that is derived from the use of the Software Services that does not directly or indirectly identify the Customer or its End Users, and includes (a) data such as volumes, frequencies, bounce rates, and performance data for the Software Services, and (b) subject to any restrictions under Applicable Laws, data that is anonymised, de-identified, and/or aggregated such that it does not directly identify the Customer or its End Users.
Twilio Services the Twilio software services purchased by the Customer, as part of the Third Party Services, as set out in the Order Form.
1.2. Unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) paragraph headings shall not affect the interpretation of these End User Terms;
(d) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that statute or statutory provision;
(e) the terms 'subsidiary' and 'holding company' shall have the meanings set out in section 1159 of the Companies Act 2006;
(f) any words following the terms 'including', 'include', 'in particular', 'for example' or any similar expression shall be construed as illustrative and shall not limit the generality of the preceding words and shall be construed as if they were immediately followed by the words 'without limitation'.
2. Customer Use of the Software Services
2.1. The Customer will:
(a) be solely responsible for all use of the Software Services and Documentation under the Customer's account, and for the Customer Services;
(b) not transfer, resell, lease, license, or otherwise make available the Software Services to any third party (except to make the Software Services available to End Users) or offer them on a standalone basis;
(c) use the Software Services only in accordance with the Terms and Conditions, these End User Terms, any applicable Acceptable Use Policy, any End User Terms or Acceptable Use Policy relating to Third Party Services set out in the Sub-processor List, the Documentation, any usage restrictions in an applicable Order Form(s), and Applicable Laws;
(d) be solely responsible for all acts, omissions, and activities of its Authorised Users and End Users, including their compliance with the Terms and Conditions, these End User Terms, any applicable Acceptable Use Policy, the Documentation, any usage restrictions in an applicable Order Form(s), and Applicable Laws;
(e) use commercially reasonable efforts to prevent unauthorised access to or use of the Software Services and notify Ciptex promptly of any such unauthorised access or use;
(f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and
(g) comply with the Customer's representations and warranties set out in paragraph 4 below.
2.2. The Customer shall not, and shall procure that its Authorised Users shall not:
(a) use the Software Services in any way that breaches any Applicable Law;
(b) use any of the Software Services to transmit, upload, disseminate or otherwise distribute any material that:
(i) is unlawful, harmful, threatening, defamatory, obscene, indecent, infringing, harassing, racially, religiously or ethnically offensive, or otherwise objectionable;
(ii) infringes any Intellectual Property Rights, rights of privacy, personality or publicity or other third party rights;
(iii) contains unsolicited or unauthorised advertising or promotional content;
(iv) facilitates or promotes illegal activity;
(v) threatens the security and/or confidentiality of the Software Services; and/or
(vi) causes damage to injury to any person or property;
(c) store, distribute or transmit any Malicious Code (or attempt to do the same) during the course of its use of the Software Services, or attack the Software Services via a denial-of-service attack or a distributed denial-of-service attack;
(d) attempt to access without authority, interfere with, damage or disrupt any part of the Software Services;
(e) use any of the Software Services to commit any fraud or fraudulent activity;
(f) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form, all or any part of the Software Services, or copy, modify, translate, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any part of the Software Services and/or Documentation in any form or media or by any means (including by using any robot, spider or other automated device or manual process);
(g) access all or any part of the Software Services and/or Documentation in order to build a product or service which competes with any of the Software Services; or
(h) license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make any of the Software Services or Documentation available to any third party, or use any of the Software Services to provide services to third parties.
2.3. The Customer acknowledges that the features and functions of the Software Services may change over time, and it is the Customer's responsibility to ensure the Customer Services are and remain compatible with the Software Services. If any changes to the Software Services are not backwards compatible, Ciptex shall provide such notification as is received from the relevant Third Party Provider in respect of such a change. A non-backwards compatible change to Software Services may be made if necessary, for example if such change is required for security reasons, by telecommunications providers, or to comply with Applicable Laws.
2.4. Without prejudice to Ciptex’s rights under the Terms and Conditions to suspend the Customer's access to and/or use of any of the Software Services, Ciptex or the relevant Third Party Provider may suspend any of the Software Services upon written notice to the Customer if:
(a) the Customer or any of its Authorised Users or End Users materially breach (or Ciptex, or the relevant Third Party Provider believes, in good faith, that they have materially breached) any applicable Acceptable Use Policy;
(b) there is an unusual and material spike or increase in the Customer's use of the Software Services and such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Software Services;
(c) the provision of any of the Software Services is prohibited by Applicable Laws;
(d) use of the Software Services by the Customer, its Authorised Users or End Users threatens the security, integrity, or availability of any of the Software Services; or
(e) information in the Customer’s account is untrue, inaccurate or incomplete.
3. Ownership, Confidential Information and Customer Data
3.1. The Customer acknowledges that all right, title, and interest in and to: (i) the Third Party Services; (ii) the Documentation relating to the Third Party Services; (iii) Confidential Information of a Third Party Provider; and (iv) Service Usage Data collected by or on behalf of a Third Party Provider, and any feedback or suggestions provided by the Customer or its Authorised Users regarding or in connection with any Third Party Services, are owned by the relevant Third Party Provider.
3.2. The RACE Software Solution comprises software developed and owned by Ciptex, and Third Party Services. The Customer acknowledges that all right, title, and interest in and to the RACE Software Solution, and any Documentation relating to the RACE Software Solution, is owned by Ciptex or a Third Party Provider. All Service Usage Data collected by or on behalf of Ciptex, and any feedback or suggestions provided by the Customer or its Authorised Users regarding or in connection with the RACE Software Solution, are owned by Ciptex or the relevant Third Party Provider.
3.3. The Customer grants to Ciptex the right for Ciptex, the relevant Third Party Providers and their Affiliates, to process Customer Data as necessary to provide the Software Services under and in accordance with the Agreement. The Customer is responsible for the quality and integrity of Customer Data.
3.4. The 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 and grant the right to use and process the Customer Data to Ciptex, relevant Third Party Providers and their Affiliates, in accordance with paragraph 3.3 above.
3.5. The parties shall comply with their obligations under clause 11 of the Terms and Conditions (Confidentiality) in respect of the use of the Software Services. The Customer acknowledges and agrees that any SOC2 or similar report provided by Ciptex or a Third Party Provider constitutes Ciptex’s or the relevant Third Party Provider’s Confidential Information, and may only be disclosed to Customer, or its Authorised Users who have a "need to know" the information contained in such SOC2 or similar report and who are legally bound to terms of confidentiality that are at least as protective as the terms of clause 11 of the Terms and Conditions.
4. Warranties
4.1. The Customer warrants and represents that:
(a) 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 he jurisdictions that apply directly or indirectly to the Software Services, including the United States;
(b) it has not made, offered, promised to make, or authorised any payment or anything of value in breach of Anti-Corruption and Trade Laws. The Customer shall promptly notify Ciptex in writing of any actual or potential breach of Anti-Corruption and Trade Laws in connection with the use of the Software Services and take all appropriate steps to remedy or resolve such breach, including any steps requested by Ciptex or any Third Party Provider. If applicable and permitted by the terms of the Agreement, the Customer represents and warrants that it has obtained, and will continue to obtain, all licences or other authorisations required to export, re-export, or transfer the Software Services. The Customer represents and warrants that it and its Authorised Users are not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, Sanctions Lists). The Customer will immediately (i) discontinue its use of the Software Services if it is placed on any Sanctions List and (ii) remove its Authorised Users' access to the Software Services if those Authorised Users become placed on any Sanctions List. Without prejudice to any other obligation or restriction applicable to the Customer under the Agreement, the Customer represents and warrants that it has not, and that it will not, export, re-export, or transfer the Software Services to an entity on any Sanctions List without prior authorisation from the applicable governmental authority.
4.2. Ciptex may terminate the Agreement or the use of any of the Services immediately upon written notice to the Customer if the Customer is in breach of its obligations in paragraph 4.1 above. The Customer acknowledges that the Customer's account for any Software Services may be blocked if it is operating in a country or region prohibited under paragraph 4.1 or otherwise under the Agreement, in which event the Customer will receive notice of its account being inoperable when it attempts to log into its account in such prohibited country or region.
5. Liability
5.1. From time to time, the Customer may be given access to Beta Offerings. The Customer acknowledges that a Beta Offering may be discontinued at any time.
5.2. The Software Services, and any Beta Offerings, are provided "as is", and without any warranty of any kind, whether express, implied or statutory, and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement including the implied conditions, warranties and other terms as to satisfactory quality and fitness for purpose.
5.3. The Customer's use of the Software Services shall be subject to the limitations and exclusions of liability under clause 12 of the Terms and Conditions.
6. Termination
6.1. A breach of these End User Terms or any applicable Acceptable Use Policy shall be a material breach of the Agreement, which shall entitle Ciptex to terminate, with immediate effect, the Customer's right to use any of the Software Services and/or the Agreement.
7. General
7.1. The Customer will not assign or otherwise transfer any rights or obligations under these End User Terms, in whole or in part.
7.2. If any provision of these End User Terms is held by a court to be unenforceable, invalid or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provisions shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
7.3. A Third Party Provider shall have the right to enforce these End User Terms against the Customer in respect of its Third Party Services.
7.4. Save as set out in Section 7.3, no third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce the terms of these End User Terms.
7.5. These End User Terms, and any dispute or claim arising out of or in connection with these End User Terms, or the subject matter or formation (including non-contractual disputes or claims) of these End User Terms, shall be governed by and construed in accordance with the laws of England and Wales, and the English courts shall have exclusive jurisdiction to settle any such dispute or claim.