TERMS OF SERVICE (“TOS”)

IMPORTANT – READ CAREFULLY BEFORE USING THIS SERVICE

BY USING THIS SOFTWARE AS A SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS TOS, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS TOS AND THE TERMS OF ANY SEPARATE WRITTEN AGREEMENT SIGNED BETWEEN WATERFIELD TECHNOLOGIES, INC. (“WTI”) OR TWILIO, INC. (“TWILIO”) AND YOU, THE TERMS OF SUCH SEPARATE AGREEMENTS SHALL NOT BE DEEMED TO GOVERN OR MODIFY YOUR USE OF THE SERVICE THAT YOU ARE ACCESSING PURSUANT TO THIS TOS. FOR THE PURPOSE OF THIS TOS, “USING” SHALL INCLUDE, ANY MANNER IN WHICH YOU ACCESS AND USE WTI’S SERVICE AS A SERVICE. IF YOU DO NOT AGREE TO THE PROVISIONS SET FORTH IN THIS TOS, YOU ARE STRICLY PROHIBITED FROM USING THE SERVICE.

1. Service as a Service.

a. WTI grants to you a non-exclusive, non-transferable right to use the Service, for the total number of users and/or subscriptions you have purchased from Twilio or a Twilio-authorized reseller. Such use shall be on the terms and subject to the conditions set forth herein.

b. No title or ownership of any Software or Service is transferred to you by way of this TOS. Ownership of the Software, Service and all modifications, enhancements, improvements, adaptations, translations and derivative works thereof and any other intellectual property rights therein and thereto shall remain at all times with WTI and its licensors.

c. The Service contains material that is protected by United States and international intellectual property laws, including copyright law, trade secret law, and by international treaty provisions. All rights not expressly granted to you herein are reserved to WTI and its licensors.

d. You shall not publish, disclose, rent, lease, modify, loan, distribute, alter or create derivative works based on the Service or any part thereof. You shall not reverse engineer, decompile, unbundle, translate, adapt, or disassemble the Service, nor shall you attempt to create the source code or object code to replicate the same or similar Service.

e. WTI MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WTI DOES NOT WARRANT THAT THE SERVICE IS OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED OR MEET OR WILL MEET YOUR REQUIREMENTS. WTI MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY OR QUALITY OR IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE, AND NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. ACCORDINGLY, WTI DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. THE SERVICE MAY CAUSE YOUR COMPUTER TO AUTOMATICALLY CONNECT TO THE INTERNET. THE SERVICE MAY ALSO REQUIRE ACTIVATION OR REGISTRATION.

2. Confidentiality. The Service is the confidential and proprietary information of WTI, and you shall not disclose the Service to any third party without WTI’s prior express written consent.

3. Limitation of Liability.

IN NO EVENT WILL WTI BE LIABLE TO YOU WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS TOS FOR: (a) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION, LOSS OF USE, LOSS OF OR DAMAGE TO RECORDS OR DATA AND/OR CORRUPTION OF INFORMATION, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOST REVENUE, PROFITS AND/OR SALES, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION, SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER YOU RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (b) DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAID BY YOU TO WTI FOR THE SERVICE. Nothing in this TOS shall limit or exclude our liability for matters that cannot be excluded or limited by applicable law.

4. Exports. You shall not export the Service, Documentation, or information about the Service and Documentation other than in accordance and compliance with all applicable laws, regulations, orders, or other restrictions.

5. Governing Law. This TOS shall be governed, construed, and interpreted in accordance with the laws of the jurisdiction of the state of Oklahoma. Notwithstanding the foregoing, either party may seek interim or temporary injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property rights. Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”), and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this TOS. To the extent not prohibited by applicable law that cannot be waived, the parties hereby waive, and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with this TOS.

6. General.

a. WTI may transfer its rights and obligations under this TOS to another organization, but this will not affect your rights or our obligations under this TOS.

b. You may only transfer your rights or your obligations under this TOS to another person if WTI agrees in writing.

c. If WTI fails to insist that you perform any of your obligations under this TOS, or if WTI does not enforce its rights against you, or if WTI delays in doing so, that will not mean that WTI has waived its rights against you and will not mean that you do not have to comply with those obligations. If WTI does waive a default by you, WTI will only do so in writing, and that will not mean that WTI will automatically waive any later default by you.

d. Each of the conditions of this TOS operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

e. This Section 6(e) is applicable only for U.S. Government End Users. You agree that the Software as a Service accessed under this TOS is Commercial Computer Service, as that term is defined in 48 C.F.R. § 2.102 and 48 C.F.R. § 252.227-7014(a)(1), was developed exclusively at private expense, and is subject to copyright protection in the United States and certain other countries.  The Software as a Service is provided to civilian agencies of the U.S. Government only with the rights specified in this TOS, pursuant to 48 C.F.R. § 12.212(b).  If the Software as a Service is provided to a non-civilian agency of the U.S. Government, then it is provided only with the rights specified in this TOS, pursuant to 48 C.F.R. § 227.7202-3 (2008).  If any Software as a Service accessed and use under this TOS is determined by a court of competent jurisdiction to be other than copyright protected Commercial Computer Service, then all such Software and/or Service is deemed provided subject to the restricted rights set forth in this TOS.

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