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2021-05-17_Agenda Packet--Dossier de l'ordre du jour Tj!wpvt!bwf{!cftpjo!eft!tfswjdft!fo!gsbodbjt!qpvs!vof!sêvojpo!ef!Dpotfjm!dpnnvobm-!wfvjmmf{ dpoubdufs!mf!cvsfbv!ev!hsfggjfs!dpnnvobm!bv!769.3973/ /źƷǤ ƚŅ {ğźƓƷ WƚŷƓ /ƚƒƒƚƓ /ƚǒƓĭźƌ aĻĻƷźƓŭ aƚƓķğǤͲ ağǤ ЊАͲ ЋЉЋЊ Committee of the Whole Њ͵ /ğƌƌ Ʒƚ hƩķĻƩ Si vous avez besoin des services en français pour une réunion de Conseil communal, veuillez contacter le bureau du greffier communal au 658-2862. Each of the following items, either in whole or in part, is able to be discussed in private pursuant to the provisions of subsection 68(1) of the Local Governance Act and Council / Committee will make a decision(s) in that respect in Open Session: Ɠķ ЎʹЋЉ Ʀ͵ƒ͵Ͳ Ћ CƌƚƚƩ .ƚğƩķƩƚƚƒͲ /źƷǤ Iğƌƌ 1.1!Approval of Minutes 68(1) 1.2!Financial Matter 68(1)(c) 1.3!Financial Matter 68(1)(c) 1.4!Financial Matter 68(1)(c) 1.5!Personnel Matter 68(1)(j) 1.6!Personnel Matter 68(1)(j) Ville de Saint John Séance du conseil municipal Lundi 17 mai 2021 18 h e Hôtel de Ville, salle du conseil municipal, 2 étage Accès public par voie électronique Comité plénier 1. Ouverture de la séance Si vous souhaitez obtenir des services en français pour une séance du conseil municipal, veuillez communiquer avec le bureau du greffier municipal au 658-2862. en vertu des dispositions prévues au paragraphe 68(1) de la \[ƚź ƭǒƩ ƌğ ŭƚǒǝĻƩƓğƓĭĻ ƌƚĭğƌĻ. Le conseil/comité prendra une ou des décisions à cet égard au cours de la séance publique : 16 h, Réunion tenue avec participation électronique 1.1!Adoption du procès-verbal paragraphe 68(1) 1.2!Question liée aux finances alinéa 68(1)c) 1.3!Question liée aux finances alinéa 68(1)c) 1.4!Question liée aux finances alinéa 68(1)c) 1.5!Question liée au personnel alinéa 68(1)j) 1.6!Question liée au personnel alinéa 68(1)j) Séance ordinaire 1. Ouverture de la séance 2. Approbation du procès-verbal 2.1 Procès-verbal de la réunion du 3 mai 2021 2.2 Procès-verbal de la réunion du 5 mai 2021 5.1Mise à niveau du système de réfrigération différents arénas(Recommandation contenue dans le rapport) 5.2 Remplacement des toitures inférieures, marché de Saint-Jean (Recommandation contenue dans le rapport) 5.3 catastrophes (PNAC) accord secondaire de contribution (Recommandation contenue dans le rapport) 5.4 Contrat 2021-07 : avenue Broadview (de la rue Charlotte à la rue Carmarthen) sanitaire et pluvial, et travaux de réfection de la rue (Recommandation contenue dans le rapport) 5.5 (Recommandation contenue dans le rapport) 5.6 Rétablissement de la vidéosurveillance dans le garage Peel (Recommandation contenue dans le rapport) 5.7 répondeur ou texto (Recommandation contenue dans le rapport) 5.8 Énoncé de contrat de travail avec Esri Canada (Recommandation contenue dans le rapport) 5.9 Accord de non-divulgation entre la Ville et Irving Pulp & Paper, Limited, TorchLight Bioresources Inc. et Rathco ENG Ltd. (Recommandation contenue dans le rapport) 5.10 Licence Microsoft pour étudiants (Recommandation contenue dans le rapport) 5.11 Fonds de réserve pour investissements immobiliers stratégiques (Recommandation contenue dans le rapport) !! 6.Proclamation 6.1 Semaine de sensibilisation à la situation des personnes handicapées du 30 mai au 5 juin 2021 7. 8. Comité plénier 8.1 Letter LBR 9. Commentaires présentés par les membres 10. Levée de la séance DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! ! ! ! MINUTES REGULAR MEETING COMMON COUNCIL OF THE CITY OF SAINT JOHN rd MAY 3, 2021 AT 6:00 PM MEETING CONDUCTED BY ELECTRONIC PARTICIPATION Present: Mayor Don Darling Deputy Mayor Shirley McAlary Councillor-at-Large Gary Sullivan Councillor Ward 1 Blake Armstrong Councillor Ward 1 Greg Norton Councillor Ward 2 John MacKenzie Councillor Ward 3 Donna Reardon Councillor Ward 3 David Hickey Councillor Ward 4 David Merrithew Absent: Councillor Ward 4 Ray Strowbridge Also Present: City Manager J. Collin General Counsel M. Tompkins Fire Chief & Chief Emergency Management Services K. Clifford Chief of Staff & Chief Financial Officer K. Fudge Commissioner, Human Resources S. Hossack Commissioner, Public Works and Transportation Services M. Hugenholtz Commissioner, Utilities & Infrastructure Services B. McGovern Commissioner, Growth & Community Services J. Hamilton Director Legislative Services / City Clerk J. Taylor Deputy City Clerk P. Anglin Administrative Officer R. Evans 1 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! 1. Call to Order To conform to the Government COVID-19 State of Emergency and Mandatory Order masking requirements during Code Alert Level Yellow, Council Members and staff participated by video conference. The City Clerk conducted roll call noting Councillor Strowbridge sent his regrets. To ensure public access and transparency the meeting is being livestreamed, video The Mayor advised due to the Municipal Election results reporting being delayed until May 25th, tonight will not be the last meeting of Common Council. There will be a Regular thth Meeting of Council on May 17 and a Special Meeting on May 5. 2. Approval of Minutes 2.1 Minutes of April 19, 2021 Moved by Deputy Mayor McAlary, seconded by Councillor MacKenzie: RESOLVED that the April 19, 2021 minutes be approved. MOTION CARRIED. 3. Approval of Agenda Moved by Councillor Sullivan, seconded by Councillor Hickey: rd RESOLVED that the agenda for the May 3, 2021 meeting be approved with the addition of the following items: !16.1 Special Meeting of Council Wednesday May 5 at 4:30 p.m. to consider 3rd reading of Bylaw Number LG-16 A Bylaw Respecting Powers of Outgoing Council of the City of Saint John. !17.1 Voluntary Separation Program 2021 !17.2 Moosehead Litigation - West Water Third Party Claim against BGC Engineering Inc. 4. Disclosures of Conflict of Interest Councillor Norton declared a conflict of interest with item 17.2 Moosehead Litigation- West Water Third Party Claim against BGC Engineering Inc. 5. Consent Agenda 5.1 That the submitted report M&C 2021-109: Update #3 - Water Levels in the South Bay Wellfield, be received for information. 2 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! 5.2 That as recommended by the City Manager in the submitted report M&C 2021- 125: Contract No. 2021-06: Princess Street Water, Sanitary and Storm Sewer Renewal and Street Reconstruction, the contract be awarded to the low Tenderer, TerraEx Inc., at their tendered price of $1,118,571.08 (including HST) as calculated based upon estimated quantities; and further that the Mayor and City Clerk be authorized to execute the necessary contract documents. 5.3 That as recommended by the City Manager in the submitted report M&C 2021-126: Contract 2021-12: Westmorland Rd. & Bayside Dr. Flow Meters/Chamber #33 Flow Limiting Valves, the contract be awarded to the low tenderer, Keel Construction Ltd., at the tendered price of $107,697.48 (including HST) as calculated based upon estimated quantities; and further that the Mayor and City Clerk be authorized to execute the necessary contract documents. 5.4 That as recommended by the City Manager in the submitted report M&C 2021- 119: Contract No. 2021-13 Asphalt Resurfacing 2021, the contract be awarded to the low Tenderer, Galbraith Construction Ltd., at the tendered price of $4,868,504.01 (including HST) as calculated based upon estimated quantities; and further that the Mayor and City Clerk be authorized to execute the necessary contract documents. 5.5 That as recommended by the City Manager in the submitted report M&C 2021- 128: Engineering Services Lancaster Wastewater Treatment Facility Aeration System Assessment and Air Piping Renewal, the proposal from Englobe Corp. (Englobe) for engineering design and construction management services for the Lancaster Wastewater Treatment Facility Aeration System Assessment and Air Piping Renewal project in the amount of $141,261.98 including HST be accepted; and that the Mayor and City Clerk be authorized to execute the appropriate documentation in that regard. 5.6 That as recommended by the City Manager in the submitted report M&C 2021- 122: Roof Rehabilitation Fire Station #5: 35 Adelaide Street, the tender submitted by Dowd Roofing Inc, for the Roof Rehabilitation at Fire Station #5 in the amount of $215,250.00 (plus HST) be accepted; and that the Mayor and City Clerk be authorized to execute the necessary contract documents. 5.7 That as recommended by the City Manager in the submitted report M&C 2021- 123: Roof Rehabilitation Fire Station #7: 7 Manchester Avenue West, the tender submitted by J.E. Wilson Roofing Co. Ltd, for the Roof Rehabilitation at Fire Station #7 in the amount of $91,585.00 (plus HST) be accepted; and that the Mayor and City Clerk be authorized to execute the necessary contract documents. 5.8 That as recommended by the City Manager in the submitted report M&C 2021- 120: Materials Testing and Construction Inspection Services for 2021 and 2022, the proposal from Gemtec Consulting Engineers and Scientists Limited., for Material Testing 3 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! and Construction Inspection Services for 2021 and 2022 in the amount of $1,334,450.80 including HST be accepted; and that the Mayor and City Clerk be authorized to execute the appropriate documentation in that regard. 5.9 That as recommended by the City Manager in the submitted report M&C 2021- 127: Sale of Vacant Lot at Civic #55 Boars Head Road to 715306 NB Ltd., 1.!Common Council rescind its resolution on October 13, 2020 pertaining to M&C #2020-245; and 2.!The City of Saint John enter into the Agreement of Purchase and Sale with 715306 NB Ltd., in the form as attached to M&C 2021-127 for the sale of PID No. 55147383, also known as civic #55 Boars Head Road and further that the Mayor and City Clerk be authorized to execute the documents necessary to effect the conveyance of PID No. 55147383. 5.10 That as recommended by the City Manager in the submitted report M&C 2021- 129: Engineering Services: Lakewood Heights Area Inflow and Infiltration Study, the proposal from CBCL Limited for engineering services for the Lakewood Heights Area - Inflow and Infiltration Study in the amount of $283,475 including HST be accepted; and that the Mayor and City Clerk be authorized to execute the appropriate documentation in that regard. 5.11 That as recommended by the City Manager in the submitted report M&C 2021- 130: Low Carbon Economy Fund (LCEF) Second Amending Agreement - Municipal Buildings Energy Retrofit Project, Common Council approve the Second Amending Agreement under the Low Carbon Economy Fund for the Municipal Buildings Energy Retrofit Project in the form and upon the terms and conditions as submitted; and that the Mayor and City Clerk be authorized to execute the said Amending Agreement. 5.12 That as recommended by the City Manager in the submitted report M&C 2021- 131: Low Carbon Economy Fund (LCEF) Second Amending Agreement - District Energy System (DES) Project, Common Council approve the Second Amending Agreement under the Low Carbon Economy Fund for the District Energy System (DES) Project in the form and upon the terms and conditions as submitted; further that the Mayor and City Clerk be authorized to execute the said Amending Agreement; and in Phase 2 be conditional upon the approval of a business case by the Finance Committee proval within the Capital Budget and Capital Plans. 5.13 That as recommended by the City Manager in the submitted report M&C 2021- 133: Ice Lights Renewal TD Station, the proposal submitted by Security Electrical Ltd., for the Ice Lighting LED Upgrades at TD Station in the amount of $198,800 plus HST be accepted. Further to the proposed amount, a contingency allowance in the amount of 4 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! $39,000 plus HST be approved for this project, for a total cost of $237,800 plus HST; and that the Mayor and City Clerk be authorized to execute the necessary contract documents. 5.14 That as recommended by the City Manager in the submitted report M&C 2021- 134: License Agreement for Use of Portion of South Market for the Demolition of Adjacent Buildings, The City of Saint John enter into a License Agreement with W/L Holdings Inc. in the form as attached to M&C #2021-134 to facilitate the demolition of the buildings, located at civic #85 to #91 King Street on a portion of PID No. 39420, known as South Market Street; and further that the Mayor and City Clerk be authorized to execute the said License Agreement. 5.15 That as recommended by the City Manager in the submitted report M&C 2021- 140: Street Naming cour Stonehammer Court, Common Council amend the list of Official Street Names and approve the following change: 1.! Stonehammer 5.16 That as recommended by the City Manager in the submitted report M&C 2021- 121: Amendment to Grant Agreement with Iron Gate Development Inc. for redevelopment of property at 29 Canterbury Street, the City enter into an Amendment to Grant Agreement with Iron Gates Development Inc. in the form attached to M&C No. 2021-121; and that the Mayor and City Clerk be authorized to execute the necessary contract documents. 5.17 That as recommended by the City Manager in the submitted report M&C 2021- 143: Student Placement Agreement for NBCC Students, the City of Saint John enter into a Student Placement Agreement with New Brunswick Community College allow the placement of NBCC students at the City of Saint John for the purposes of work integrated learning placements, and further that the City of Saint John enter into a Student Placement Agreement (Student Portion) for each student placement, in a form substantially similar to the agreement submitted, and further that the Mayor and City Clerk be authorized to execute the said NBCC Student Placement Agreement, and one such Student Placement Agreement (Student Portion), as modified appropriately, for the purposes of each specific future placement. Moved by Deputy Mayor McAlary, seconded by Councillor Reardon: RESOLVED that the recommendation set out in each consent agenda item respectively, be adopted. MOTION CARRIED UNANIMOUSLY. 6. Members Comments 5 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! Members of Council commented on various activities. 7. Proclamations 7.1 Volunteer Board Members The Mayor recognized the outgoing Board Member Volunteers for Develop Saint John, Discover Saint John, and Economic Development Greater Saint John (EDGSJ) by proclamation. The Board Members, made up of volunteers of all backgrounds, experiences and talents include: Develop Saint John Discover Saint John EDGSJ Peter Allaby David Alston Jennifer Arsenault Cynthia Goodwin Dave Drinnan Larry Hachey Stephen Kopp Terry Hutchinson David Irving Gerry Lowe Glenda MacLean Andy MacPherson Leslie Magee Corey McGill Ryan Mitchell Francis Power Jasmine Mosher Andrew Alanna Waberski Gilliane Nadeau Oland Kurt Peacock Eric Poirier Stephany Publicover Danielle Timmons Elizabeth Rowe Amy Lynn Patterson Joel Richardson 7.2 2021 National Police Week May 9 to May 15, 2021 thth The Mayor Proclaimed May 9 to 15 National Police Week in the City of Saint John recognizing the dedicated service of the City first responders, police and fire. 8. Delegations/Presentations 9. Public Hearings 6:30 PM 10. Consideration of Bylaws rd 10.1 Bylaw respecting the Licensing of Peddlers and Hawkers (3 Reading) Commissioner Hamilton introduced the bylaw amendments to address the permit fees reviewed in the Development Fees Sustainability Project stating many fees had not been adjusted in over 20 years. 6 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! Moved by Deputy Mayor McAlary, seconded by Councillor Sullivan: RESOLVED that the by--Law Number L.G.-14, A By-Law respecting the -Law Number M-15, A By-Law respecting the Licensing of Peddlers and change for those who can receive and issue license applications, and to update for the new Local Governance Act, be read. MOTION CARRIED. In accordance with the Local Governance Act sub-section 15(3) the by-- Law Number L.G.-14, A By-Law respecting the Licensing of Peddlers and Hawkers in The Moved by Deputy Mayor McAlary, seconded by Councillor Merrithew: RESOLVED that the by--Law Number L.G.-14, A By-Law respecting the -Law Number M-15, A By-Law respecting the Licensing of Peddlers and change for those who can receive and issue license applications, and to update for the new Local Governance Act, be read a third time, enacted, and the Corporate Common Seal affixed thereto. MOTION CARRIED. Read a third time by title, the by--Law Number L.G.-14, A By-Law rd 10.2 Bylaw respecting the Use of Sidewalks (3 Reading) Moved by Deputy Mayor McAlary, seconded by Councillor MacKenzie: RESOLVED that the by--Law Number L.G.-13, A ByLaw respecting the Use ByLaw Number M-21, A Law respecting the Use of Sidewalks within The City of Saint John Occupancy permits, Sidewalk Café permits and Sidewalk Vendor sites, and to update for the new Local Governance Act, be read. MOTION CARRIED. In accordance with the Local Governance Act sub-section 15(3) the by-By- Law Number L.G.-13, A ByLaw respecting the Use of Sidewalks within The City of Saint 7 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! Moved by Deputy Mayor McAlary, seconded by Councillor Sullivan: RESOLVED that the by--Law Number L.G.-13, A ByLaw respecting the Use -21, A Law respecting the Use of Sidewalks within The City of Saint John Occupancy permits, Sidewalk Café permits and Sidewalk Vendor sites, and to update for the new Local Governance Act, be read a third time, enacted, and the Corporate Common Seal affixed thereto. MOTION CARRIED. Read a third time by title, the by-By-Law Number L.G.-13, A ByLaw rd 10.3 Zoning Bylaw Amendment with Section 59 Conditions 300 Sydney Street (3 Reading) Commissioner Hamilton advised of the rezoning to permit the Landmark development, a 180-unit residential development at the foot of Sydney Street. The application also involves section 59 conditions and section 131 conditions both related to the development of the property and securing public benefits relating to the project. Moved by Deputy Mayor McAlary, seconded by Councillor MacKenzie: RESOLVED that the by--Law Number C.P. 111-111 A Law to Amend the Zoning By- City of Saint John, by rezoning a parcel of land having an area of approximately 7881 square metres, located at 300 Sydney Street, also identified as being PID Number 00000034, from Major Community Facility (CFM) to High-Rise Residential (RH); and -law of The City of Saint John, by increasing the maximum building height of PID Number 00000034 from 14 metres to approximately 39.3 metres, be read. MOTION CARRIED. The by--Law Number C.P. 111-111 A Law to Amend the Zoning By-Law of Moved by Deputy Mayor McAlary, seconded by Councillor Sullivan: RESOLVED that Common Council, pursuant to the provisions of Section 59 of the Community Planning Act, impose the following conditions on the parcel of land having an area of approximately 7881 square metres, located at 300 Sydney Street, also identified as PID Number 00000034: 8 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! (a) The development and use of the parcel of land be in accordance with detailed building elevation and site plans, prepared by the proponent and subject to the approval of the Development Officer, illustrating the design and location of buildings and structures, garbage enclosures, outdoor storage, driveway accesses, vehicle, and bicycle parking, loading areas, landscaping, amenity spaces, signs, exterior lighting, and other such site features. (b) Trees and shrubs be planted in the front, flankage, and rear yards, as well as the side yard where possible, to the same standard required by the Zoning By-law for developments in Commercial and Community Facility zones, as per the landscaping plans, and that such trees and shrubs be planted within one year from the issuance date of the development permit; (c) All infrastructure improvements to support the development will be completed at the ense including: i. Extension of the watermain to the development site and possible upsizing of the watermain, should it be required, to provide adequate flows for the proposed development. ii. Extension of the sanitary sewer main to serve the development site, with the provision of a private sewage lift station and force main, should it be required. iii. Provision of recommended transportation network improvements, detailed in the Traffic Impact Statement dated February 17, 2021 prepared by Englobe Limited for the proposed development at 300 Sydney Street. iv. Provision of a concrete sidewalk and concrete curb and gutter along the Sydney Street frontage of the site. (d) That the development be constructed above existing grade given the significant tidal influences in this area and not include a basement level below the current elevation of Sydney Street. (e) That the site and building plans, including floor plans, and building elevations, be in substantial conformity with the revised design prepared for the project as shown on plans dated April 12, 2021 prepared by Spitfire Design on behalf of Parsi Development for the multiple unit residential development at 300 Sydney Street and include the following elements: i. incorporation of a two-story façade along the Sydney Street and outside corner elevations with ground floor commercial and residential uses in the second storey. ii. Building façade materials to be in accordance with the materials shown on the drawings including a masonry façade on the lower two storey portion that has commercial space on the ground floor and residential uses on the second floor. iii. improved use of material treatments and colours on the sides of the building which do not face the water to break up the massing of the building; 9 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! (f) That notwithstanding subsection 10.2(1) of the Zoning By-law, the following commercial uses be permitted in the ground floor area along Sydney Street and within the southwestern portion of the building: i. Artist or Craftsperson Studio ii. Business Office iii. Live-Work Unit (g) That notwithstanding paragraph 10.2(2)(b) of the Zoning By-law, uses located within the two-storey area along Sydney Street within the southwestern portion of the building have their main access from outside the building at ground level: (h) That the development shall be completed within 5 years of the date the rezoning came into effect. If it is not completed within that time, Council may take steps to cancel the resolution and agreement and repeal the rezoning pursuant to Section 59(5) and 59(6) of the New Brunswick Community Planning Act. MOTION CARRIED. Moved by Councillor Merrithew, seconded by Councillor MacKenzie: RESOLVED that the by--Law Number C.P. 111-111 A Law to Amend the Zoning By- City of Saint John, by rezoning a parcel of land having an area of approximately 7881 square metres, located at 300 Sydney Street, also identified as being PID Number 00000034, from Major Community Facility (CFM) to High-Rise Residential (RH); and -law of The City of Saint John, by increasing the maximum building height of PID Number 00000034 from 14 metres to approximately 39.3 metres, be read a third time, enacted, and the Corporate Common Seal affixed thereto. MOTION CARRIED. Read a third time by title, the by--Law Number C.P. 111-111 A Law to Amend the Zoning By-Law of The City of Saint Joh st 10.4 By-Law respecting Powers of the Outgoing Council of the City of Saint John (1 and nd 2 Reading) General Counsel M. Tompkins advised Council on the restrictions in The Local Governance Act the day of a general election and ending on the day of the first meeting of an incoming outgoing council may exercise those restricted powers: a) in case of emergency if it is in 10 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! the public interest, and b) if it is authorized by by-law passed prior to the date of the election. Consideration was given to the submitted report M&C 2021-141: ByLaw respecting Powers of the Outgoing Council of the City of Saint John. Moved by Deputy Mayor McAlary, seconded by Councillor Hickey: RESOLVED that the by--Law Number L.G.-16 A By-Law respecting Powers of the Outgoing Council of the Cit MOTION CARRIED. Read a first time by title, the by--Law Number L.G.-16 A By-Law respecting Powers of the Outgoing Council of the City of Saint John. Moved by Deputy Mayor McAlary, seconded by Councillor Reardon: RESOLVED that the by--Law Number L.G.-16 A By-Law respecting Powers MOTION CARRIED. Read a second time by title, the by--Law Number L.G.-16 A By-Law respecting Powers of the Outgoing Council of the City of Saint John. 10.5 Bylaw respecting the Procedures of the Common Council of the City of Saint John rd (3 Reading) The City Clerk advised of the consolidation of 14 amendments to the bylaw and the repeal and replacement of the existing Council Procedural Bylaw. Moved by Councillor Hickey, seconded by Councillor MacKenzie: RESOLVED that the by--Law Number L.G.-15, A By-Law respecting the Procedures of the -Law Number M-5, A By-Law respecting the Procedures of the Common Mayor, consolidation of 14 Procedural by-law amendments, updated content and several housekeeping items, be read. MOTION CARRIED with Deputy Mayor McAlary and Councillor Sullivan voting nay. In accordance with the Local Governance Act sub-section 15(3) the by-law enBy- Law Number L.G.-15, A ByLaw respecting the Procedures of the Common Council of The 11 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! Moved by Councillor Reardon, seconded by Councillor MacKenzie: RESOLVED that the by--Law Number L.G.-15, A By-Law respecting the -Law Number M-5, A By-Law respecting the Procedures of the Common Council of the Mayor, consolidation of 14 Procedural by-law amendments, updated content and several housekeeping items, be read a third time, enacted, and the Corporate Common Seal affixed thereto. MOTION CARRIED with Deputy Mayor McAlary and Councillor Sullivan voting nay. Read a third time by title, the by-By-Law Number L.G.-15, A ByLaw 11. Submissions by Council Members 11.1 Direct Racial Discrimination (Mayor Darling) Responding to question, the City Manager commented that it is appropriate for either the Mayor or City Manager to prepare the follow-up letter with the government. Concerning joining associations, the City Manager commented that Council has been focused on the priority of sustainability. Now that sustainability is on track Council may want to be leaders in other areas such as addressing systemic racism. Staff can research which associations would be appropriate to join. Balancing sustainability with other issues in the workload is key. Moved by Councillor Hickey, seconded by Deputy Mayor McAlary: RESOLVED that the Mayor follow up for a progress update, with the appropriate Federal and Provincial governments on our requests from July 2020, to make racial discrimination a criminal offense. MOTION CARRIED with Councillor Armstrong voting nay. 12. Business Matters - Municipal Officers 12.1 Integrated Customer Service Centre Project Update Director of Continuous Improvement, S. Rackley-Roach, introduced the Integrated Customer Service Centre model that provides enhanced citizen contact experience and accessibility to City information and services in person, online, and by telephone. Manager Integrated Customer Service Centre, R. Van Wart, updated Council on the project accomplishments and next steps. 12 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! The City Manager advised that each Thursday the Manager Integrated Customer Service Centre updates the Senior Leadership team on trends and key issues demonstrated by the data captured in the software. Moved by Councillor Norton, seconded by Councillor Reardon: RESOLVED that the report entitled Integrated Customer Service Centre Project Update be received for information. MOTION CARRIED. 12.2 2021 Planned Traffic Safety Improvement Projects Commissioner Hugenholtz introduced the 2021 planned traffic safety improvement initiatives. The Main Street North update concerning bike lane connection to the Uptown needs the support of the province since the location is a provincially designated highway. Traffic Engineer, Director, provided the project highlights including improved school zone safety, road lane reduction and sharing with bike lanes on University Avenue, vehicle lane conversion to bike lanes on Main Street North, and pedestrian safety initiatives. The City Manager commented on the Main Street North bike lane stating the levels of discussion with the province to date have been at the staff level not policy level. Other levels of government officials will need to be involved. Moved by Councillor Sullivan, seconded by Councillor Hickey: RESOLVED that as recommended by the City Manager in the submitted report M&C 2021- 139: 2021 Planned Traffic Safety Improvement Projects, Common Council adopt the following: 1.!Common Council support, pending a detailed traffic safety and operational study, the conversion of one or two centre vehicle lanes on Main Street North and the Viaduct to bike lanes; and 2.!His Worship be supported in sending a letter to the Provincial Minister of Transportation & Infrastructure that seeks Provincial support, pending a detailed traffic safety and operational study, the conversion of one or two centre vehicle lanes on Main Street North and the Viaduct to bike lanes. MOTION CARRIED. 13. Committee Reports 13.1 Growth Committee: Municipal ENCORE Program Sidewalk Café Rebate Initiative 13 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! Chair of the Growth Committee Mayor Darling introduced recommendations from the Growth Committee for a Sidewalk Café Rebate Initiative as a COVID-19 recovery initiative. Moved by Deputy Mayor McAlary, seconded by Councillor MacKenzie: RESOLVED that as recommended by the Growth Committee in the submitted report M&C 2021-136: Municipal ENCORE Program: Sidewalk Café Rebate Initiative: WHEREAS Common Council has implemented a Municipal Economic and Community Recovery program in order to enable and accelerate local economic and community activity in response to the current public health pandemic; NOW THEREFORE BE IT RESOLVED that the Common Council enact and direct the City Manager to implement the 2021 Sidewalk Café Rebate Initiative; FURTHER BE IT RESOLVED that the City direct up to $20,000 to rebate sidewalk cafe permit fees and fees for parking spaces through this initiative from the growth reserve funds already allocated to the Municipal Economic and Community Recovery Program; AND FURTHER BE IT RESOLVED that any funds directed to this initiative that remain unused by Dec 31, 2021 be reallocated to the Municipal Economic and Community Recovery Program. MOTION CARRIED. 13.2 Growth Committee: Municipal ENCORE Program Tourism Incentive Proposal The Chair of the Growth Committee, Mayor Darling, introduced the recommendation from the Growth Committee for a $20,000 Tourism Incentive proposal. Moved by Deputy Mayor McAlary, seconded by Councillor MacKenzie: RESOLVED that as recommended by the Growth Committee in the submitted report M&C 2021-137: Municipal ENCORE Program: Tourism Incentive Proposal: WHEREAS Common Council has implemented a Municipal Economic and Community Recovery program in order to enable and accelerate local economic and community activity in response to the current public health pandemic, NOW THEREFORE BE IT RESOLVED that Common Council supports the tourism incentive proposal from the Saint John Hotel Association and Envision Saint John with a grant of $20,000 and directs the City Manager to prepare a memorandum of understanding which outlines the terms, conditions, and expected outcomes of the funding. FURTHER BE IT RESOLVED that Common Council direct up to $20,000 for this partnership from funds expected to be returned to the City as part of the wind-down of Discover Saint 14 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! John, or from the Growth Reserve Fund that is allocated for the Municipal Economic and Community Recovery program. MOTION CARRIED with Councillor Norton voting nay stating the $20,000 investment would have more impact invested in parks and recreation facilities such as Dominion Park to promote quality of life and a healthy lifestyle. 13.3 Finance Committee: Utility and General Fund 2021 Capital Programs Revision II Chair of Finance Committee, Councillor Merrithew introduced the report endorsed by the Finance Committee. Moved by Councillor Reardon, seconded by Councillor Norton: RESOLVED that as recommended by the Finance Committee in the submitted report M&C 2021-135: Utility and General Fund 2021 Capital Programs Revision II, Common Council: !Approve revision II of the 2021 Water and Sewerage Utility Fund Capital Budget in the amount of $12,608,934 (gross) with contributions from other sources of $6,362,934 yielding a net capital budget in the amount of $6,246,000 to be funded by pay as you go (net) as set in Appendix A; and, !Approve revision II of the 2021 General Fund Capital Budget in the amount of $45,309,783 (gross) with contributions from other sources of $29,442,183, yielding a net Capital budget in the amount of $15,867,600 to be funded by debt issue (net) as set in Appendix B. MOTION CARRIED. 13.4 Finance Committee: FAS -005 Capital Budget Policy Chair Finance Committee, Councillor Merrithew introduced the Capital Budget Policy endorsed by the Finance Committee. The updates include changing the Capital Budget Policy to allocate General Fund annual capital investment to 85% Capital renewal and 15% New Capital investment. The previous allocation was 90% Capital Renewal and 10% New Capital investment. Moved by Councillor Reardon, seconded by Councillor MacKenzie: RESOLVED that as recommended by the Finance Committee in the submitted report M&C 2021-138: FAS-005 Capital Budget Policy, Common Council approve policy FAS-005 Capital Budget Policy. MOTION CARRIED. 13.5 Finance Committee: Group Plan Benefit Update 15 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! Chair Finance Committee, Councillor Merrithew introduced the Group Benefit Plan Update endorsed by the Finance Committee. Moved by Deputy Mayor McAlary, seconded by Councillor Reardon: RESOLVED that as recommended by the Finance Committee in the submitted report M&C 2021-144: Group Benefit Plan Update, Common Council accept the plan design changes and premium increases as outline herein and authorize Mayor and City Clerk to execute amended contracts with Managed Health Care Services Inc. in the form submitted. MOTION CARRIED. 14. Consideration of Issues Separated from Consent Agenda 15. General Correspondence 16. Supplemental Agenda th 16.1 Special Meeting May 5 at 4:30 pm to consider Bylaw Number LG-16 A Bylaw Respecting Powers of Outgoing Council of the City of Saint John Moved by Deputy Mayor McAlary, seconded by Councillor Reardon: th RESOLVED that the City Clerk be directed to call a Special Meeting May 5, 2021 at 4:30 p.m. to be conducted by remote participation to consider Bylaw Number LG-16 A Bylaw Respecting Powers of Outgoing Council of the City of Saint John. MOTION CARRIED. 17. Committee of the Whole 17.1 2021 Voluntary Separation Agreement Moved by Deputy Mayor McAlary, seconded by Councillor Reardon: rd RESOLVED that as recommended by the Committee of the Whole having met on May 3, 2021, Common Council adopt the submitted Human Resources Policy, Voluntary Separation Program, including the criteria and benefit formula. MOTION CARRIED. Declaring a conflict with item 17.2, Councillor Norton withdrew from the meeting. 17.2 Moosehead Litigation - West Water Third Party Claim against BGC Engineering Inc. 16 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!4se-!3132!0!mf!4!nbj!3132! Moved by Councillor MacKenzie, seconded by Deputy Mayor McAlary: rd RESOLVED that as recommended by the Committee of the Whole having met on May 3, 2021 Common Council adopt the following: 1.!That the City of Saint John authorize its legal counsel, McInnes Cooper, to commence a third-party claim against BGC Engineering Inc. in respect of a claim commenced against the City by Moosehead Breweries Limited; and further 2.!That the City of Saint John authorize its legal counsel, McInnes Cooper, to enter into an agreement to suspend limitation periods against Matt Alexander, Fundy Engineering & Consulting Ltd. and Ken Howard, or failing such an agreement, to commence a third-party claim against any or all of them. MOTION CARRIED. 18. Adjournment Moved by Councillor MacKenzie, seconded by Councillor Reardon: RESOLVED that the meeting of Common Council held on May 3, 2021 be adjourned. MOTION CARRIED. The Mayor declared the meeting adjourned at 8:23 p.m. 17 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!6-!3132!0!mf!6!nbj!3132! !! ! ! ! MINUTES REGULAR MEETING COMMON COUNCIL OF THE CITY OF SAINT JOHN MAY 5, 2021 AT 4:30 PM MEETING CONDUCTED BY ELECTRONIC PARTICIPATION Present: Mayor Don Darling Deputy Mayor Shirley McAlary Councillor-at-Large Gary Sullivan Councillor Ward 1 Blake Armstrong Councillor Ward 2 John MacKenzie Councillor Ward 3 Donna Reardon Councillor Ward 3 David Hickey Councillor Ward 4 David Merrithew Councillor Ward 4 Ray Strowbridge Absent: Councillor Ward 1 Greg Norton Also Present: City Manager J. Collin Chief of Staff & Chief Financial Officer Commissioner K. Fudge General Counsel M. Tompkins Fire Chief & Chief Emergency Management Services K. Clifford Commissioner Human Resources S. Hossack Commissioner Public Works and Transportation Services M. Hugenholtz Commissioner Utilities & Infrastructure Services B. McGovern Commissioner Growth & Community Services J. Hamilton Director Legislative Services / City Clerk J. Taylor Deputy City Clerk P. Anglin Administrative Clerk R. Evans 1 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!6-!3132!0!mf!6!nbj!3132! 1. Call to Order To conform to the Government COVID-19 State of Emergency and Mandatory Order masking requirements during Code Alert Level Yellow, Council Members and staff participated by video conference. The City Clerk conducted roll call noting Councillor Norton absent. To ensure public access and transparency the meeting is being live-streamed, video 1.0 Approval Agenda Moved by Deputy Mayor McAlary, seconded by Councillor MacKenzie, th RESOLVED that the agenda for the May 5, 2021 meeting be approved. MOTION CARRIED. 1.1 Disclosures of Conflict of Interest There were no disclosures of conflict of interest. 1.1 By-Law respecting Powers of the Outgoing Council of The City of Saint John General Counsel M. Tompkins advised Council on the restrictions in The Local Governance Act uring the period commencing on the day of a general election and ending on the day of the first meeting of an incoming council outgoing council may exercise those restricted powers: a) in case of emergency if it is in the public interest, and b) if it is authorized by by-law passed prior to the date of the election. The third reading of the bylaw will enable election bridging period. All the items listed in the proposed bylaw are contemplated in the approved budget and are listed because they are procurements that could exceed the estimate that is in the budget and the other items that are not contemplated in the budget are those that relate to the restoration effort for the cyberattack. Moved by Deputy Mayor McAlary, seconded by Councillor Sullivan: RESOLVED that the by--Law Number L.G.-16 A By-Law respecting Powers be read. MOTION CARRIED. 2 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!6-!3132!0!mf!6!nbj!3132! The by--Law Number L.G.-16 A By-Law respecting Powers of the Outgoing Council of the City of Saint John Moved by Councillor Sullivan, seconded by Councillor MacKenzie: RESOLVED that the by--Law Number L.G.-16 A By-Law respecting Powers a third time, enacted, and the Corporate Common Seal affixed thereto. MOTION CARRIED. Read a third time by title, the by-law -Law Number L.G.-16 A By-Law respecting Powers of the Outgoing Council of the City of Saint John 1.2 Section 131 Agreement 300 Sydney Street Commissioner Hamilton advised that Council is to consider section 131 conditions which are intended to secure public benefit related to the Landmark development at 300 Sydney Street. These conditions did form part of the recommendations Council considered at the stnd Public Hearing from both PAC and staff and received 1 and 2 reading but they were rdrd missed from the May 3 Council packet when Council approved 3 reading and section 59 conditions. The report includes a resolution from the Clerk to address this oversight and would authorize a Section 131 Agreement to be prepared between the City and developer intended to secure public benefits associated with the development and would align with the conditions recommended by both PAC and staff. Moved by Councillor MacKenzie, seconded by Deputy Mayor McAlary: RESOLVED that as recommended by the City Manager in the submitted report M&C 2021- 145: Section 131 Agreement 300 Sydney Street, Common Council authorize a Section 131 agreement between the City and the Developer for the following public benefits associated with the development at 300 Sydney Street: i. A contribution of $130,000 to the City towards improvements at Rainbow Park including: 1. An updated Master Plan for Rainbow Park; 2. Repairs of the existing basketball court; 3. Enhanced landscaping; and 4. Funding for the temporary operations of the outdoor ice surface. ii. A contribution of $10,000 to the City towards a bus shelter to be located along Broad Street in the vicinity of the development; iii. A contribution of $20,000 to the City towards the beautification of the Tin Can Beach area. MOTION CARRIED. 3 DPNNPO!DPVODJM!0!DPOTFJM!DPNNVOBM! Nbz!6-!3132!0!mf!6!nbj!3132! 2. Adjournment Moved by Councillor Reardon, seconded by Councillor MacKenzie: RESOLVED that the meeting of Common Council held on May 5, 2021 be adjourned. MOTION CARRIED. The Mayor declared the meeting adjourned at 4:46 p.m. 4 COMMON COUNCILREPORT M&C No. 2021-124 Report Date May 11, 2021 Meeting Date May 17, 2021 Service Area Utilities and Infrastructure Services His Worship Mayor Don Darling and Members of Common Council SUBJECT: Refrigeration System Upgrades Various Arenas OPEN OR CLOSED SESSION This matter is to be discussed in open session of Common Council. AUTHORIZATION Primary Author Commissioner/Dept. Head City Manager 3 ¬¨± 9 ¬¬¨­¤ *ȁ "±¤­³ -¢'®µ¤±­ *®§­ #®««¨­ RECOMMENDATION 1.!It is recommended that the tender submitted by Black & McDonald Limited, for the Refrigeration System Upgrades at the various Arenas in the amount of $240,235 plus HST be accepted. Further to the base tender amount, it is recommended that a contingency allowance be included out for this project in the amount of $10,000 plus HST, for a total cost of $250,235 plus HST. Additionally, it is recommended that the Mayor and Common Clerk be authorized to execute the necessary contract documents. 2.!It is recommended that the City accept the offer by the Regional Development Corporation for funding from the Community Development City of Saint John - Improvementsalso : as presented to Council at its May 17, 2021 meeting and that the Mayor and Common Clerk by authorized to execute the said offer. EXECUTIVE SUMMARY The purpose of this report is the Refrigeration System Upgrades at the various Arenas to the lowest compliant bidder and to bring forward an offer from the Regional Development Corporation for cost sharing of the project costs that include the replacement of 4 condensers and 1 chiller at three Arenas. PREVIOUS RESOLUTION NA STRATEGIC ALIGNMENT The Refrigeration System Upgrades at the various Arenas are clearly aligned with the Councilinvest in sustainable City services and Recreation infrastructure. REPORT City staff in cooperation with the consultant have conducted several building condition assessments and inspections on Gorman Arena, Lord Beaverbrook Rink (LBR) and Hurley Arena. The objective of these assessment is to achieve the following: Improve the asset data inventories for the Arenas. Help Council as well as staff make more informed investment decisions. Develop a 25-year long term capital investment profile on the TD-Station. Identify energy and cost savings opportunities using life cycle cost assessment to reduce energy and maintenance costs as well as GHG emissions to help achieve Corporate GHG emissions target. The scope of work for the project before Council for approval consists of supplying and installing the following mechanical equipment: 1-!One (1) chiller and One (1) condenser at Gorman Arena 2-!One (1) condenser at Stu Hurley Arena 3-!Two (2) condensers at Lord Beaverbrook Rink (LBR) The above mechanical components are beyond their useful life, resulting in increased service and maintenance costs as well as an increased risk of reductions in the level of recreational service due to equipment failure. Additionally, the replacement of these components will eliminate the risk of having the existing chiller and condensers fail, which could result in ammonia exposure to the public and City staff. The proposed installation will result in the following benefits: !Increase energy efficiency and reduce energy costs. !Reduce service and maintenance costs. !Improve operational liability. !Eliminate the risk of having ammonia exposure to the public and City staff. !Reduce capital investment and infrastructure deficit. SERVICE AND FINANCIAL OUTCOMES The total cost to complete the Refrigeration System Upgrades at the various arenas, if awarded to the lowest bidder as recommended, will be $260,960.06 including HST Rebate and $10,000 contingency. The pre-tender budget for the work was estimated at $245,000 plus HST not including contingency. Cost of this project is funded under the Community Development Stream Funding in accordance with the attached offer from the Regional Development Corporation of the Province of New Brunswick and the remaining cost is being funded under the City General Capital Program and Operating Budget. The analysis is as follows: Community Development Funding: $95,000 Capital Budget: $95,000 Operating Budget: $70,960.06 The difference between the engineering estimate and the budget is that the budget included the replacement of three condensers and one chiller, however, through further inspection and before the work was tendered it was identified that four condensers and one chiller would require replacement. INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS A public tender call was issued on April 15, 2021 and closed on April 28, 2021. Two (2) companies responded to the tender call by submitting bids. The results are as follows (excluding HST): COMPANY NAME TENDER PRICE* Black & McDonald Limited $240,235.00 Cimco $278,000.00 Ϋ9ǣĭƌǒƭźǝĻ ƚŅ I{ Staff of Supply Chain Management and Facilities Management have reviewed the tenders and have found them to be complete and formal in every regard. Staff believes that the low tenderer has the necessary resources and expertise to perform the work and recommend acceptance of their tender. Supply Chain Management support the recommendation being put forth. ATTACHMENTS Funding offer from the Regional Development Corporation COMMON COUNCILREPORT M&C No. 2021-146 Report Date May 11, 2021 Meeting Date May 17, 2021 Service Area Utilities and Infrastructure Services His Worship Mayor Don Darling and Members of Common Council SUBJECT: Lower Roofs Replacement, City Market OPEN OR CLOSED SESSION This matter is to be discussed in open session of Common Council. AUTHORIZATION Primary Author Commissioner/Dept. Head City Manager * ²®­ " ±³®­ 3 ¬¨± 9 ¬¬¨­¤ȝ*ȁ "±¤­³ *®§­ #®««¨­ -¢'®µ¤±­ RECOMMENDATION It is recommended that the tender submitted by Dowd Roofing Inc, for the Replacement of the Lower Roofs at the City Market in the amount of $204,250.00 (plus HST) be accepted. Further to the base amount, it is recommended that a contingency allowance be carried for this project in the amount of $20,000.00 plus HST, for a total amount of $224,250.00 plus HST. Additionally, it is recommended that the Mayor and Common Clerk be authorized to execute the necessary contract documents. EXECUTIVE SUMMARY The purpose of this report is the Replacement of the Lower Roofs at the City Market to the lowest compliant bidder. PREVIOUS RESOLUTION The following previous resolution was adopted by Common Council: 1)!M&C 2019-238. It is recommended that the tender submitted by Eclipse Construction Services Ltd. For the replacement of the City Market Hall Upper Roof in the amount of $290,324.73 plus HST be accepted. Further to the base amount, it is recommended that a contingency allowance be carried for this project in the amount of $20,000.00 plus HST, for a total amount of $310,324.73 plus HST. Additionally, it is recommended that the Mayor and Common Clerk be authorized to execute the necessary contract documents. STRATEGIC ALIGNMENT Roof Replacement, City Market Lower Roofs is clearly aligned with the Council Priorities to invest in sustainable City services and municipal infrastructure as well as with the Asset Management Policy to minimize risk to the Level of Service (LOS). REPORT The existing lower roofs at the City Market are over 30 years old and were determined to be in poor condition and need complete replacement. Additionally, the existing roofs have started to show signs of severe deterioration and water leakage. The scope consists of the following: Remove existing roofing, vapour barrier and composite board insulation Remove redundant roof top mechanical equipment Install new vapour barrier Install new composite board insulation and base sheet Install new cap sheet Install new accessories (flashings, metal, etc.) SERVICE AND FINANCIAL OUTCOMES The total cost to complete the Replacement of Lower Roofs, if awarded to the lowest bidder as recommended, will be $224,250.00 including HST Rebate (100% in this case). This includes a $20,000.00 contingency allowance. Cost of this project is funded under the 2020 Capital Program. Program. The analysis is as follows: Capital Budget: $337,052.16 Project net cost: $224,250.00 Variance (Under Budget): $112,802.16 INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS A public tender call was issued on April 20th, 2021 and closed on May 11th, 2021. Two (2) companies responded to the tender call by submitting bids. The results are as follows (excluding HST): COMPANY NAME TENDER PRICE* Dowd Roofing Inc. $ 204,250.00 J.E. Wilson Roofing Co. Ltd. $ 272,741.00 *Exclusive of HST Staff of Supply Chain Management have reviewed the tenders and have found them to be complete and formal in every regard. Staff believes that the low tenderer has the necessary resources and expertise to perform the work and recommend acceptance of their tender. Supply Chain Management support the recommendation being put forth. ATTACHMENTS N/A /haahb /h…b/L\[ w9thw M&C No. 2021-147 Report Date May 12, 2021 Meeting Date May 17, 2021 Service Area Utilities and Infrastructure Services His Worship Mayor Don Darling and Members of Common Council SUBJECT: National Disaster Mitigation Program (NDMP) Funding Sub- Contribution Agreement AUTHORIZATION Primary Author Commissioner/Dept. Head City Manager Susan Steven J. Brent McGovern / John Collin Michael Baker RECOMMENDATION RESOLVED That the City enter into a Sub-Contribution Agreement with Her Majesty the Queen in Right of New Brunswick as represented by the Minister of Risk M- 147; and that the Mayor and City Clerk be authorized to execute the necessary contract documents. It is recommended that the proposal from CBCL Limited for the Flood Risk Mitigation Strategy for Lower Cove Loop in the amount of $89,987.50 including HST be accepted and that the Mayor and City Clerk be authorized to execute the appropriate documentation in that regard. EXECUTIVE SUMMARY The purpose of this report is to: !recommend that Council authorize the Mayor and City Clerk to execute the attached Sub-Contribution Agreement under the National Disaster Mitigation Program; and !recommend that Council award the contract for the Flood Risk Mitigation Strategy for Lower Cove Loop to CBCL Limited. PREVIOUS RESOLUTIONS February 22, 2021; (M&C 2021-051) Utility and General Fund Revised 2021 Capital Programs Approved. May 3, 2021; (M&C 2021-135) Utility and General Fund 2021 Capital Programs Revision II Approved. - 2 - REPORT The Government of Canada introduced the National Disaster Mitigation Program (NDMP) as part of their commitment to build safer and more resilient communities. The NDMP addresses rising flood risk and costs and builds the foundation for informed mitigation investments that could reduce, or even negate, the effects of flood events. The provincial and territorial governments are the eligible recipients for funding under this program, but they may also redistribute the funding to eligible entities, such as municipal or other local governments, public sector bodies, private sector bodies, international non- government organizations or any combination of these entities. The City of Saint John submitted a funding application for the NDMP to the Province for a Flood Risk Mitigation Strategy for Lower Cove Loop. The Province forwarded the submission to the Federal government and the Federal government committed to providing a $45,000 in funding for this project (50%). The remaining 50% will be funded by the City of Saint John ($45,000 from the approved 2021 Utility Fund Capital Program). The Province will not provide any funding for this work but will channel the funding from the Federal government to the City. The City of Saint John has been advised by letter from the New Brunswick Emergency Measures Organization Acting Recovery Manager, G. Bruce Parks, on behalf of the New Brunswick Minister of Justice and Public Safety, that funding under the NDMP has been approved for the aforementioned project and that the funds will be allocated to the project subject to the terms and conditions outlined in the Sub-Contribution Agreement and Main Contribution Agreement attached. The Acting Recovery Manager is requesting that the City of Saint John confirm acceptance of the Sub-Contribution Agreement conditions by signing the attached Sub-Contribution Agreement and returning it to the Province. In preparation for the funding submission, CBCL Limited completed an Uptown Saint John Coastal Flood Risk Assessment for the City of Saint John. This report identified areas within the Uptown Peninsula that are at an increased risk of coastal flooding due to sea level rise and climate change. Lower Cove Loop was highlighted as an area that will require flood resilient infrastructure that will be able to handle continuously rising seas and coastal flooding. The Flood Risk Mitigation Strategy for Lower Cove Loop will build off of the findings from the Coastal Flood Risk Assessment by providing actionable recommendations for flood mitigation and overflow management with associated opinions of probable cost. The scope of work for the Mitigation Strategy will include: !Task 1: Field Data Collection Program and Site Investigations !Task 2: Analysis and Modelling !Task 3: Draft and Final Report Sections !Task 4: Concept Design Options Development - 3 - !Task 5: Development of Opinion of Probable Cost !Task 6: Project Wrap-Up CBCL Limited has submitted their proposed project team, work plan, schedule and fees to complete all of the work identified above. Consulting costs were estimated prior to the submission for funding, therefore appropriate funding could be allocated in the 2021 Utility Capital Program for this project. Staff completed its review of the submission and find it acceptable for the proposed scope of work. The costs incurred by the Consultant will be paid at the rates submitted and accepted in the Consultants proposal, not to exceed the Recommended Hourly Rates as contained in The Association of Consulting Engineering Companies - New Brunswick fee guideline. STRATEGIC ALIGNMENT it relates to investing in sustainable City services and municipal infrastructure. The City is also being Financially Responsible through the generation of revenue from alternative sources. SERVICE AND FINANCIAL OUTCOMES The City of Saint John will receive funding from the Federal Government (channeled through the Provincial Government) for expenditures to complete a Flood Risk Mitigation Strategy for Lower Cove Loop. This work supports the life cycle maintenance of City assets and upholds the long-term financial sustainability of the City of Saint John. The proposed cost for CBCL Limited to provide a Flood Risk Mitigation Strategy for Lower Cove Loop is $89,987.50 including HST. The 2021 Water & Sewerage Utility Fund Capital Program included $90,000 to complete this work ($45,000 Other Share, $45,000 Utility Share). INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS The Contribution Agreement - National Disaster Mitigation Projects and the Sub- Contribution Agreement Flood Risk Mitigation Strategy for Lower Cove Loop have been reviewed by the General Counsel Office. - 4 - ATTACHMENTS !Sub-Contribution Agreement - Flood Risk Mitigation Strategy for Lower Cove Loop !Contribution Agreement - National Disaster Mitigation Projects (Annex A.1, A.2, B.1 and B.2 are not related Flood Risk Mitigation Strategy (Lower Cove Loop) project. National Disaster Mitigation Program CONTRIBUTION AGREEMENT National Disaster Mitigation Projects BETWEEN HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of Public Safety and Emergency Preparedness (herein referred to as ) AND HER MAJESTY THE QUEEN IN RIGHT OF NEW BRUNSWICK, as represented by the New Brunswick Department of Justice and Public Safety (herein referred to as WHEREAS support projects that contribute to the achievement of the objectives with respect to reducing the impacts of natural disasters on Canadians by: 1) focusing investments on significant, recurring flood risks and costs; and 2) advancing work to facilitate private residential insurance for overland flooding. AND WHEREAS Canada wishes to provide, through this Agreement, a financial contribution to New Brunswick for the purpose of the approved Project(s), being more fully described in Annex A (hereinafter referred to as approved THE PARTIES THEREFORE AGREE AS FOLLOWS: 1. MAXIMUM AMOUNT OF THE CONTRIBUTION 1.1. In support of the approved Project(s), described in Annexes A.1 to A.3, and subject to the terms and conditions set out in this Agreement, Canada agrees to contribute up to a maximum amount of $191,587.50 towards eligible expenditures described in the Budget(s) of the approved Project(s), and not exceeding the maximum amount, identified in Annexes B.1 to B.3. 1.2. The maximum amount of the contribution is established as follow(s): a)!by fiscal year beginning on April 1 of a calendar year and ending on March 31 of the subsequent calendar year, and, b)!in accordance with the Budget(s) (Annexes B.1 to B.3) at: $191,587.50 for Fiscal Year 2021-2022; Totalling $191,587.50 for the funding provided by Canada under this Agreement. 1 2. CONDITIONS 2.1 New Brunswick acknowledges that under section 40 of the Financial Administration Act (R.S.C. 1985, c. F-11), any payment under this Agreement is subject to an annual appropriation for the fiscal year in which any commitment hereunder would come in course of payment. Therefore, funding for this Agreement may be reduced or terminated at Canada's discretion in response to the Government of Canada's annual budget or a parliamentary spending decision that has an impact on the Program under which this Agreement is made. 2.2 Any payment under this Agreement is subject to the continuance of the Program under which this Agreement is made and the terms and conditions for the fiscal year in which any commitment hereunder would come in course of payment. Therefore, funding under this Agreement may be reduced or terminated at Canada's discretion in order to comply with any Government decision that has an impact on the Program or its terms and conditions. 2.3 In the event of a proposed reduction or termination to the funding of the Program under subsection 2.1 or 2.2, Canada may, after giving New Brunswick a written notice of (30) thirty days, reduce the funding or terminate this Agreement. If as a result of reduction in funding, New Brunswick is unable or unwilling to complete the approved Project(s), New Brunswick may, after giving Canada a written notice, terminate this Agreement. Subject to the terms and conditions of this Agreement, in the event that this Agreement is terminated, the obligations of both Parties will cease. 2.4 New Brunswick agrees that: a)!Unless Canada has authorized on-Reserve First Nations to utilize Indigenous and of the eligible costs of an approved Project(s), up to 100% of New Bru eligible project costs, any payment under this Agreement is subject to financial assistance costs for New Brunswick; b)!Unless Canada has authorised it, the maximum amount of in-kind contribution from all non-federal sources of funding contributing to the provincial or territorial share of the eligible costs may not exceed fifteen percent (15%); c)!it shall, without delay, inform Canada of any change to the Budget(s), the project(s) objectives and/or activities, or of any change in anticipated funding and any additional amount that is received for the approved Project(s); and, d)!if total financial assistance exceeds the percentage prescribed at paragraph a)!or if the approved Project(s) generates a profit, or receives other sources of funding for the purpose of the Agreement, Canada may reduce the contribution, request reimbursement of any overpayment or renegotiate the expected activities/results. 3. ELIGIBLE AND INELIGIBLE EXPENDITURES 3.1 The Parties agree that only the budget categories of expenditures described in Annex B.1 to B.3 are eligible under this Agreement. 2 3.2 eligible expenditures described in Annexes B.1 to B.3 of this Agreement. New Brunswick also acknowledges having been informed that the following expenditures are not eligible expenditures under this Agreement: a)!Costs relating to events and equipment which are considered to be the routine responsibility of provincial ministries or first responder agencies such as police, fire and ambulance. b)!Ongoing operating and maintenance costs for National Disaster Mitigation Program initiatives following completion of the approved Project(s). c)!The value assigned to data that was procured or collected prior to this Agreement. d)!Administrative costs which are not directly related to a specific National Disaster Mitigation Program project. New Brunswick is expected to absorb the routine costs of doing business. Examples such as regular salaries and benefits, audit costs, office furniture, equipment, office supplies, committee work, administration and supervision of National Disaster Mitigation Program projects are not to be cost- shared. It is recognized that certain proposals incur extraordinary administrative expenses, which are incremental to the routine costs of providing government services; these expenses can be considered for cost-sharing and shall be clearly identified in detail at the proposal stage. e)!Hospitality costs. f)!Mitigation projects that would yield only temporary measures (e.g., use of sandbags). g)!Mitigation projects that would create ongoing need for funds from the federal government or from New Brunswick that cannot be absorbed in their current budget. h)!Any expenditures related to a project already started prior to application for funding and prior to approval. i)!Damages and interests resulting from any action or omission causing harm to a third party for which New Brunswick is held civilly liable by a Court and has to pay; or fines under any municipal, provincial, territorial or federal legislation resulting from a transgression by New Brunswick, or any amount resulting from any settlement entered into by New Brunswick, or imposed by a Court, including an Arbiter, to New Brunswick in relation with the funded National Disaster Mitigation Program project. j)!Taxes other than the PST or provincial part of the HST. k)!Projects that address needs that are not related to prevention/mitigation. l)!Costs reimbursed under another Government of Canada program. 3.3 Canada does not reimburse the tax paid by New Brunswick for goods and services for which New Brunswick is entitled to tax credit or reimbursement. 3.4 The maximum rates that New Brunswick can claim for exceptional transportation related to the delivery of the approved Project(s) shall be reimbursed up to Economy Class. 3.5 In accordance with the Reporting Requirements and Payment Schedule (Annex C) and the Budget(s) (Annexes B.1 to B.3), eligible expenditures must be incurred by New Brunswick in the fiscal year they are allocated and New Brunswick may report an eligible expenditure to a subsequent Fiscal Year only with the written authorization of Canada. 3.6 Only expenditures incurred by New Brunswick during the period covered by this Agreement under section 35 may be claimed by New Brunswick. 3 3.7 New Brunswick may redistribute the contribution only if the following conditions are met: a)!New Brunswick acknowledges its independence in the choice of the persons or entities and project(s) proposed to and approved by Canada, now eligible under paragraph c) and to whom New Brunswick is authorised to redistribute the funding received under this Agreement, and that New Brunswick is not administering the Program on behalf of Canada; b)!New Brunswick agrees that it is solely responsible for the action or omission of a person or entity to whom it will redistribute funding received under this Agreement and must indemnify and save harmless Canada and its employees and agents from and against all claims, losses, damages, costs, expenses, actions and other proceedings made, sustained, brought, prosecuted, threatened to be brought or prosecuted in any manner based upon, occasioned by or attributable to any injury to or death of a person or damage to or loss of property arising from any willful or negligent act, omission or delay on the part of the person or entity to which New Brunswick to whom it redistributed the funding received under this Agreement; c)!In support of the approved Project(s), described in Annexes A.1, A.2 and A.3 and subject to the terms and conditions set out in this Agreement, Canada agrees to contribute to redistribution of funding up to a maximum amount of $191,587.50 toward eligible expenditures described in the Budget(s) (Annexes B.1, B.2 and B.3); d)!New Brunswick agrees that it shall only redistribute funds received under this Agreement to these entities: i.!City of Fredericton ii.!Town of Sussex iii.!City of Saint John e)!Funds redistributed by New Brunswick shall appear in a specific Budget(s) (Annexes B.1, B.2 and B.3) and the cashflow statement(s), and may only be used for the eligible expenditures described in subsection 3.1; f)!New Brunswick agrees that it will only redistribute funds received under this Agreement if it has created a provincial program and/or signed a written funding agreement with an eligible entity, identified in subsection d), which address the following elements: i.!the responsibilities agreed to between New Brunswick and the person or entity with whom New Brunswick redistributes the funding received under this Agreement, including their financial roles and responsibilities; ii.!provisions for oversight, reviews, and audits to be conducted by New Brunswick and the right of New Brunswick to provide copies of any review, evaluation or audit reports to Canada; iii.!onable access to the Project documents and premises of the person or entity with whom New Brunswick redistributes funding received under this Agreement, only for the purpose of monitoring compliance with the funding provided under this Agreement and the obligations of New Brunswick; and iv.!provisions for New Brunswick to make known role in the funding provided to persons or entities to whom New Brunswick will redistribute the funding receive under this Agreement. 4 g)!New Brunswick shall provide Canada, upon request, a copy of any agreement signed with an eligible person or entity identified in subsection d) to which New Brunswick has redistributed the funding received under this Agreement; h)!New Brunswick shall provide Canada, upon request, a copy of any reports or reviews, evaluations or audits carried out by, or on behalf of, New Brunswick related to the use of the funding by an eligible person or entity to whom New Brunswick has redistributed the funding received under this Agreement. 3.8 Canada may, at its discretion, approve expenditures made by New Brunswick before the period covered by this Agreement established by section 35, only if Canada was informed in writing by New Brunswick of those expenditures before the signing of this Agreement and if New Brunswick has demonstrated to the satisfaction of Canada that the facts surrounding those expenditures met the following definition of exceptional that support a funding where there would have been loss of a critical project resource or that the viability of the project would have been jeopardized had the expenditures not been incurred prior to the signature of the agreement. 4. REALLOCATION OF FUNDS BETWEEN COST CATEGORIES 4.1 New Brunswick is permitted to reallocate funds between categories of eligible expenditures, as identified in a specific Budget(s) (Annexes B.1 to B.3), under the following conditions: a)! contribution for this fiscal year, New Brunswick must obtain a written authorization from Canada and the Parties shall amend this Agreement; or, b)!Within a current fiscal year, a reallocation is up to 20% of annual contribution for the current fiscal year, New Brunswick is not required to obtain a written authorization from Canada but the reallocation must be formally explained and included in the cash flow statement and any audited or non-audited financial reports or statement required under this agreement. c)!If the reallocation results in adding or deleting a budget(s) category, a change in the project objectives, activities, outcomes or results, New Brunswick must obtain a written authorization from Canada. Annex E includes the list of all eligible cost categories under this program. 4.2 Despite any reallocations, the maximum amount of funding will remain the same as set out in subsection 1.2. 4.3 For greater certainty, the Parties have agreed that reallocation between budget(s) and project(s) are prohibited under this Agreement. 5. PAYMENT SCHEDULE AND FINAL PAYMENT (HOLDBACK) 5.1 Canada agrees to provide New Brunswick with progress payments in accordance with the Reporting Requirements and Payment Schedule (Annex C) after receiving and approving the cashflow statements and the reports as described and outlined in subsection 5.2. 5 5.2 Canada may issue a payment only after being satisfied that New Brunswick has complied with its obligations under this Agreement, including but not limited to the production of the following reports: a)!All cashflow statements required under subsections 6.1, 6.2 and 6.3; and b)!All interim or final project reports required under section 7. 5.3 Canada will issue a final payment at the end of this Agreement only when Canada is satisfied that New Brunswick has complied with all the obligations under this Agreement. 6. FINANCIAL REPORTING Initial Cashflow Statement 6.1 New Brunswick shall provide Canada an initial cashflow statement for each project in this agreement (Annexes A.1 to A.3) upon the signature of the agreement. The cashflow must contain a presentation of the approved Project(s) budget(s), as categorized in the Budget(s) (Annexes B.1 to B.3), and include a statement of forecasted revenue and expenditures as described in (Annex D). It must be certified by a person duly authorized by New Brunswick and show any reallocations of funds between specific budget items, as per the requirements of section 4, and supporting documentation for the reallocation. Updated Cashflow Statement 6.2 New Brunswick shall provide Canada an updated cashflow statement for each project identified in this agreement in accordance with the reporting requirements and payment schedule (Annex C). The cashflow must contain a presentation of the approved Project(s) budget(s), as categorized in the Budget(s) (Annexes B.1 to B.3), and include a statement of revenue and expenditures as described in (Annex D). It must be certified by a person duly authorized by New Brunswick and show any reallocations of funds between specific budget items, as per the requirements of section 4, and supporting documentation for the reallocation. Final Cashflow Statement 6.3 New Brunswick shall provide Canada a final cashflow statement on the approved Project(s). The cashflow must contain a presentation of the approved Project(s) budget(s), as categorized in the Budget(s) (Annexes B.1 to B.3), and include a statement of revenue and expenditures as described in (Annex D). It must be certified by a person duly authorized by New Brunswick and show any reallocations of funds between specific budget items, as per the requirements of section 4, and supporting documentation for the reallocation. The final cashflow statement must be submitted to Canada no later than ninety (90) days after the completion of the Project activities. 6.4 --monetary resources provided by third-parties and/or New Brunswick to support the approved Project(s). 6.5 In-kind contributions shall be converted into monetary value and included in the Budget(s) (Annexes B.1 to B.3) only when they may affect the percentage of total 6 governmental assistance set by subsection 2.4 and when a monetary value can be reasonably estimated or when the Parties have agreed on a value and the need to report it. The estimated monetary value shall be agreed to by Canada. 6.6 All sources of funding and all in-kind contributions as defined in subsection 6.5 for the approved Project(s) shall be identified separately in the Budget(s) (Annexes B.1 to B.3) and be identified in the cashflow statements. 7. NON-FINANCIAL REPORT 7.1 New Brunswick shall provide Canada an interim and final project report as described in Annex C, in a format prescribed by Canada in Annex F. 7.2 At the end of the project, New Brunswick shall provide Canada a final project report no later than ninety (90) days after the end of the approved Project(s). 7.3 New Brunswick shall provide Canada with any additional information that Canada deems necessary for the purpose of this agreement. 8. SURPLUS AND DEFICIT 8.1 Any deficit remaining upon expiry of this Agreement is the sole responsibility of New Brunswick. 8.2 Any surplus remaining upon expiry of this Agreement constitutes a debt due to the Federal Crown. 9. DISPOSITION OF ASSETS 9.1 New Brunswick shall preserve any assets acquired with the contribution funds for the duration of the approved Project(s) and use them for the approved Project(s) only unless Canada authorizes their disposition. 9.2 At the end of the approved Project(s) activities, or upon termination of this Agreement if earlier, and if directed to do so by Canada, any assets acquired with contribution costing less than $5,000.00 that have been preserved by New Brunswick shall be: a)!Sold at fair market value and that the funds realized from such sale be applied to the eligible expenditures of the approved Project(s) to offset contribution; or, b)!Disposed of in such other manner as may be determined by Canada. 10. S New Brunswick shall: a)!Maintain separate accounting records, clearly identifying revenues and expenditures for the approved Project(s), and in the case of any in-kind contributions to the approved Project(s) by New Brunswick or by third parties, records supporting the provision of such in-kind contribution; 7 b)! generally accepted accounting principles as prescribed in the Canadian Institute of Chartered Accountants Handbook, including records of all expenditures made by New Brunswick in relation to the approved Project(s) and invoices, receipts and vouchers relating thereto; and, c)!Retain all materials and records relating to this Agreement and the approved Project(s) for a period of no less than five (5) years following the expiry or termination of this Agreement. 11. AUDIT a)!New Brunswick agrees that Canada may appoint independent auditors, at the Government of expense, during the term of this Agreement and within five (5) years following the expiry or termination thereof to review the records maintained by New Brunswick in order to ensure compliance with all financial and non-financial provisions of this Agreement, including the management of funds provided by the Government of Canada and the consistent application of generally accepted accounting principles in the maintenance of financial and accounting records. b)!New Brunswick agrees that Canada may cooperate and share information with other Government of Canada departments or agencies for the purpose of Single Recipient Audit. Single Recipient Audit utilizes a coordinated approach to recipient audit whereby an auditor representing different departments or different programs within one department conducts a single audit of a common recipient to verify compliance with terms and conditions of some or all funding agreements. c)!New Brunswick shall give access to its premises and make its materials and records available to Canada for the purpose of any evaluation or audit conducted under this Agreement, without charge, during regular business hours within seventy-two (72) hours after receiving written notification and shall make available any supporting documents, records, registers or other documents when requested. New Brunswick shall provide copies of records and registers when requested, without charge. d)!The results of audits performed by the Government of Canada could be made available to the public through posting on the Public Safety Canada Internet site (www.publicsafety.gc.ca). e)!New Brunswick shall make its materials and records available to the Government of Canada when requested by the Government of Canada for the purpose of an inquiry under subsection 7.1(1) of the Auditor General Act, R.S.C., 1985, c. A-17. 12. OVERPAYMENT 12.1 New Brunswick is deemed to have received an overpayment if any of the following occurs: a)!Sums were paid to New Brunswick but remained unexpended by the end of the last fiscal year covered by this Agreement or the date of expiry or termination of this Agreement; 8 b)! completed, and an overpayment has been identified as a result of ineligible expenditures; c)!Canada carries out a financial analysis or audits the financial statements of New Brunswick and an overpayment is identified as a result of ineligible expenditures or costs; d)!An overpayment is identified as a result of non-compliance with the stacking limits established by subsection 2.4 for total governmental financial assistance; or e)!For any other reason, New Brunswick was not entitled to the contributions, or Canada determines that the sums paid exceed the amount to which New Brunswick was entitled. 12.2 New Brunswick recognizes that expenditures may be deemed ineligible if there is no related invoice, receipt or other supporting documents or if, in the opinion of Canada, the expenditures cannot be substantiated. 12.3 Any overpayment is a debt to the Federal Crown and payable by New Brunswick. The overpayment shall be repaid to Canada no later than thirty (30) days following the date of receipt of notice from Canada or at the discretion of Canada. It may be offset by reducing any other contributions made by the Federal Crown. 12.4 Reimbursements due to Canada by New Brunswick shall be made to the Receiver General of Canada. 13. DECLARATIONS AND UNDERTAKINGS 13.1 New Brunswick declares: a)!that the description of the approved Project(s) provided in Annexes A.1 to A.3 is true and accurately reflects what New Brunswick intends to do, that the information contained therein is accurate, and that all relevant information has been disclosed; b)!that it has the capacity and authority to enter into the Agreement to carry out the approved Project(s) and that it knows of no reason, fact or event, current, imminent or probable, that would diminish this capacity and authority; c)!that all sources of funding for the approved Project(s), including any in-kind contributions as defined in subsection 6.5, are identified in the Budget(s); d)!that it holds the intellectual property rights required for the conduct of the approved Project(s), the exploitation of any intellectual property resulting thereof, and New Brunswick grants Canada the licenses and authorisations described in section 16. e)!that it is committed to the promotion of and respect for a law abiding society, the rule of law and the values and principles underlying the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and declares that it is not participating in, or 9 condoning, any activity that could be construed as contrary to the laws of Canada or its provinces or territories. f)!that the Project(s) are conducted in compliance with applicable federal and provincial legislation. g)!that no construction will occur before all Parties are satisfied that any legal duty to consult with, and where appropriate, to accommodate Indigenous groups has been met and continues to be met: i.!if, as a result of changes to a Project or otherwise, Canada determines that further consultation is required, New Brunswick will work with Canada to ensure that the legal duty to consult, and where appropriate, to accommodate Indigenous groups, is met and continues to be met to Canada's satisfaction; and h)!that New Brunswick will consult with Indigenous groups that might be affected by report to Canada, which will include: i.!a list of all Indigenous groups contacted; ii.!a summary of all communications to date with the Indigenous groups, indicating which groups support or object to the Project, and whether their positions are final, preliminary or conditional in nature; iii.!a summary of any issues or concerns that the Indigenous groups have raised and an indication of how New Brunswick has addressed or proposes to address those issues or concerns. 13.2 New Brunswick acknowledges: a)!that it was informed by Canada that any expenditure incurred by New Brunswick, prior to the date at which this Agreement has been signed by both parties, subject to section 35, will not be reimbursed; b)!that Canada did not, directly or indirectly, agree to, endorse or support in any way Agreement; c)!that any expenditures made prior to the signature of this Agreement, subject to section 3.8 and 35, were at risk; d)!that if pre-execution was sought by New Brunswick and approved by Canada: st i.!that any expenditures incurred after April 1, 2021, and prior to the signature of this Agreement must meet eligibility requirements as per the terms and conditions; st ii.!that any expenditures incurred after April 1, 2021, and prior to the signature of this Agreement must not pre-date the project approval date; st iii.!that any expenditures incurred after April 1, 2021, and prior to the signature of this Agreement must not exceed three (3) months prior to the signature of the contribution agreement; 10 st iv.!that any expenditures incurred after April 1, 2021, and prior to the signature of this Agreement must not exceed 25% of the Public Safety contribution; v.!for greater certainty, New Brunswick and the entities described in clause d) of section 3.7 must use their own funding contributions for any expenditures made by them for a given project before this Agreement is signed by both parties; and vi.!despite clause 13.2 c), expenditures incurred by the entities described in st clause d) of section 3.7 after April 1, 2021 and prior to the signing of this Agreement are deemed to be eligible expenditures for cost-sharing purposes for this Agreement. 13.3 During the term of this Agreement, New Brunswick undertakes to: a)!take all necessary actions to maintain itself in good standing, to avoid conflict of interest, to preserve its legal capacity, and to inform Canada, without delay, of any failure to do so; b)!disclose to Canada, without delay, any fact or event that would or may compromise the approved Project(s) chances of success or New Brunswick's ability to complete any of the terms and conditions of this Agreement, either immediately or in the long term, including, but not limited to, pending or potential lawsuits and audits; and c)!respect official language commitments set out in the approved Project(s) Description as outlined in the approved Project(s) Description (Annexes A.1 to A.3), and, if applicable, to make public announcements and public documents related to the activities available in both official languages. 14. PUBLIC ANNOUNCEMENT New Brunswick agrees that, with respect to this Agreement, a public announcement by Canada in the form of a press release, press conference or otherwise may be made. New Brunswick agrees announcement, as requested by Canada. New Brunswick acknowledges that its name, the amount awarded, and the general nature of the activities supported may be made publicly available by Canada. 15. ACKNOWLEDGEMENT New Brunswick agrees to acknowledge the contribution received from Canada in a manner satisfactory to Canada. 16. INTELLECTUAL PROPERTY 16.1 New Brunswick retains ownership of any intellectual property created by New Brunswick in carrying out the Project; 16.2 New Brunswick grants Canada a royalty-free, permanent and non-exclusive license to use, produce, reproduce, distribute, translate, publish or perform, in any way, of any 11 intellectual property created by New Brunswick in carrying out the Project or an adaptation, in any language, for any governmental non-commercial purpose. 17. NO-PARTNERSHIP 17.1 The Parties acknowledge that this Agreement does not constitute an association for the purpose of establishing a partnership or joint venture; does not create an agency relationship between Canada and New Brunswick, and in no way implies any agreement or undertaking to conclude any subsequent agreement. 17.2 New Brunswick agrees to not represent itself as being a partner, co-contractor, employee or agent of Canada in carrying out the approved Project(s) referred to in this Agreement. 18. ASSIGNMENT New Brunswick must not assign this Agreement, or any part thereof, or any payments to be made under it, without the written permission of Canada but nothing shall preclude New Brunswick from enlisting the assistance of others in carrying out the obligations under this Agreement. 19. DIRECT OR INDIRECT BENEFITS No member of Parliament, current or former public office holder of the Government of Canada may receive a direct or indirect benefit from this Agreement or obtain any advantage resulting from it unless they are complying with applicable regulations or policies, as the case may be, including the requirements under the Parliament of Canada Act (R.S.C. 1985, c. P-1.01), the Conflict of Interest Act (S.C. 2006, c. 9), or the Values and Ethics Code for the Public Sector. 20. LIABILITY New Brunswick agrees that Canada and its employees and agents shall not be held liable for any injury, including death to any person, or for any loss or damage to property of New Brunswick or for any obligation of New Brunswick or anyone else, incurred or suffered by New Brunswick or its employees, agents or voluntary workers in carrying out the approved Project(s), including loans, capital leases or other long term obligations in relation to this Agreement. 21. INDEMNIFICATION New Brunswick shall indemnify and save harmless Canada and its employees and agents from and against all claims, losses, damages, costs, expenditures, actions and other proceedings made, sustained, brought, prosecuted, threatened to be brought or prosecuted in any manner based upon, occasioned by or attributable to any injury to or death of a person or damage to or loss of property arising from any willful or negligent act, omission or delay on the part of New Brunswick or its employees, agents or voluntary workers in carrying out the approved Project(s), except that Canada shall not claim indemnification under this section to the extent that the injury, loss or damage has been caused by Canada or its employees or agents. 12 22. DISCLOSURE 22.1 Information gathered by the Parties in carrying out this Agreement is subject to the applicable federal and provincial legislations, regarding access to information and privacy. 22.2 New Brunswick acknowledges that Canada may make this Agreement public along with any reports, audits, evaluations or other documents produced in connection with this Agreement and any information contained in them. 23. DEFAULT AND REMEDIES 23.1 Any of the following events constitute a default to this agreement: a)!In Canada's opinion, there is a change in risk that would jeopardize the success of the approved Project(s) or the achievement of its objectives; b)!New Brunswick, either directly or through its representatives, makes a false or misleading statement to Canada; c)!In Canada's opinion, New Brunswick is in breach of the performance of, or compliance with, any term, condition, milestone, deadline, commitment or obligation provided for in this Agreement; or, d)!New Brunswick no longer meets the eligibility criteria of the Program. 23.2 If there is a default or if, in Canada's opinion, there is likely to be a default, Canada may, after giving written notice to New Brunswick and if New Brunswick does not remedy the default within thirty (30) days, do any of the following: reduce the contribution level, suspend any payment, make arrangements under particular terms and conditions so that the project is completed or continued by another recipient, rescind this Agreement and immediately terminate any financial obligation arising out of it and therefore require repayment of amounts already paid. 23.3 The fact that Canada refrains from exercising a remedy or any right herein must not be considered a waiver of such remedy or right and, furthermore, partial or limited exercise of a remedy or right conferred on Canada shall not prevent Canada in any way from later exercising any other remedy or right under the Agreement or other applicable law. 24. TERMINATION This Agreement may be terminated: a)!by any Party, when, as set out in paragraph 2.3, funding is no longer available or the appropriation has been decreased, thirty (30) days upon receipt of a notice of termination by the other Party; 13 b)!by Canada, thirty (30) days upon receipt of a notice of termination by New Brunswick, if New Brunswick has not remedied the default to the satisfaction of Canada within the thirty (30) days period as set out in paragraph 23.2; or c)!by any Party, even if there is no default by the other Party, ninety (90) days upon receipt of a notice of termination by the other Party. 25. DISPUTE RESOLUTION If there is a dispute arising under the terms of this Agreement, the Parties agree to make a good- faith attempt to settle the dispute. If the Parties are unable to resolve the dispute through negotiation, they agree to consider mediation. The Parties must bear the costs of mediation equally. 26. NOTICE a)!Any notice, information or document required under this Agreement is deemed delivered if forwarded by facsimile, email or mail. Any notice sent by facsimile or email is deemed received one (1) working day after it is sent; any notice mailed is deemed received eight (8) working days after being mailed. It is the responsibility of New Brunswick to inform Canada, in writing, of any changes to this information within seven (7) working days. b)!All notices, information and documents must be sent to the following addresses: To New Brunswick To Canada Bruce Parks Joanne McCabe A/Recovery Services Manager Regional Director, Atlantic Regional Office Public Safety Canada New Brunswick Emergency Measures Organization Victoria Health Centre 21 Mount Hope Avenue, Suite 219 P.O Box 6000 Dartmouth, NS B2Y 4R4 Fredericton, NB E3B 5H1 Telephone: (506) 453-5581 Tel: 902-426-2013 Email: Bruce.Parks@gnb.ca Email : joanne.mccabe@canada.ca 27. SEVERABILITY If any provision of this Agreement is determined to be invalid, illegal or unenforceable by a competent court, that provision must be removed from this Agreement without affecting any other provision of the Agreement. 28. SURVIVAL All obligations of confidentiality, representations and warranties set out in this Agreement as well as the provisions which bind New Brunswick which, by the nature of the rights or obligations might reasonably be expected to survive, must survive the expiry or termination of this Agreement. 14 29. ENTIRE AGREEMENT This Agreement, including the Recital, Annexes A.1 A.3 (Project Description), Annexes B.1 B.3 (Budget), Annex C (Reporting Requirements and Payments Schedule), Annex E (Eligible Budget Categories of the Program) and Annex F (Non-Financial Report Template) constitutes the entire agreement among the Parties and supersedes all previous and subsequent documents, negotiations, understandings and undertakings. Annex D (Cashflow Statement Template) is provided for convenience only. 30. AMENDMENTS This Agreement must only be amended by mutual, written consent of the Parties hereto. To be valid, any amendment to this Agreement must be in writing and signed by the Parties hereto or by their duly authorized representatives, while this Agreement is in effect. 31. GENDER AND PLURAL In this Agreement, words importing the singular number include the plural and vice versa, and words importing the masculine gender include the feminine gender and the neutral. 32. GOVERNING LAW This Agreement must be governed by and interpreted in accordance with the applicable laws in the Province of New Brunswick. 33. ENGLISH VERSION/VERSION ANGLAISE The Parties agree that the Agreement must be drafted in English only. Les parties à la présente entente acceptent rédigée en anglais seulement. 34. EXECUTION OF AGREEMENT; COUNTERPARTS; ELECTRONIC SIGNATURES 34.1 This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument, and shall become effective when counterparts have been signed by each of the Parties and delivered to the other Parties; it being understood that all Parties need not sign the same counterparts. 34.2 The exchange of copies of this Agreement and of signature pages by electronic mail in means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. 15 35. EFFECTIVE DATE AND DURATION a)!The Agreement is effective on the date of the last signature below. b)!Subject to termination, the terms and conditions of this Agreement remain in effect until ninety (90) days after March 31, 2022. c)!Subject to the provisions found in this Agreement, only those expenditures incurred by New Brunswick from the effective date to March 31, 2022 are considered eligible expenditures. For Canada Digitally signed by Breton, Dominik Date: 2021.05.03 15:32:00 -04'00' Dominik Breton signed on Program Manager Public Safety Canada For New Brunswick May 6, 2021 _ Stacey Cooling signed on A/Director NB EMO Justice and Public Safety 16 ANNEX A.1 PROJECT DESCRIPTION Project Title: City-Wide Flood Risk Profile Phase 2, City of Fredericton Objectives !Identify: flood hazards, compounding hazards, community and infrastructure vulnerabilities, impacts and for informing future non-structural and structural flood mitigation investments. !update the city-wide Flood Risk Profile in a manner consistent with the principles Flood Risk Profile. Description The project is for a Stream 1 (Risk assessment) project. The project will update the city-wide Guidelines, and as outlined in the output from the original Flood Risk Profile. The Risk Assessment will enable identification of areas that require more detailed analysis (erg.. river, storm sewer, and/or street flood risk assessments) and areas that show lower risk even when based on conservative flood risk proxies. This will enable transparent, evidence-based prioritization of future modeling, mapping, and flood control studies in areas vulnerable to flooding and flood damage. The city-wide Flood Risk Profile will continue to be updated on a regular basis going forward when future detailed flood risk assessments are completed. Over time, it will therefore evolve into a detailed city-wide flood risk assessment. Expected Outcomes An updated city- Storm Infrastructure Guidelines, and as outlined in the output from the original Flood Risk Profile. Official Languages !Any communications from New Brunswick regarding its NDMP project(s) to the public obligations under section IV of the Official Languages Act. !New Brunswick will follow the language legislation and/or policies of its own jurisdiction. !New Brunswick will consider the needs of official language minority communities in relation to any stakeholder engagement activity, and provide the documents and materials in both official languages when required. 17 Annex A.1: Work Plan Project Title: City-Wide Flood Risk Profile Phase 2, City of Fredericton 18 ANNEX A.2 PROJECT DESCRIPTION Project Title: Flood Risk Mitigation Master Plan Expansion Objectives The proposed mitigation project will contribute to the reduction or removal of the impacts or likelihood of disasters by: !Providing a completed and updated analysis of the Flood Mitigation Master planning document for both the Town of Sussex and Village of Sussex Corner. !Completing Phases 3-5 of the Flood Mitigation Master planning document which would incorporate the new flood maps and mitigation projects that have been introduced since plan was first introduced in 2016 Description The project would build on the existing Flood Risk Mitigation Master Plan (FRMMP) by completing Phases 3-5 of the plan. Phases 3-5 would incorporate the new flood maps and mitigation projects that have been introduced since plan was first introduced in 2016. Expected Outcomes Once completed, both the Town of Sussex and the Village of Sussex Corner would have an updated mitigation plan. Official Languages !Any communications from New Brunswick regarding its NDMP project(s) to the public obligations under section IV of the Official Languages Act. !New Brunswick will follow the language legislation and/or policies of its own jurisdiction. !New Brunswick will consider the needs of official language minority communities in relation to any stakeholder engagement activity, and provide the documents and materials in both official languages when required. 19 Annex A.2: Work Plan Project Title: Flood Risk Mitigation Master Plan Expansion 20 ANNEX A.3 PROJECT DESCRIPTION Project Title: Flood Risk Mitigation Strategy for Lower Cove Loop Objectives The impact of coastal flood influence has caused ongoing issues with the sanitary sewer system in the Lower Cove area and storm surge events and projected Sea Level Rise are expected to become more intense, destructive and costly with climate change. A strategy on how to mitigate the impacts of these issues, will provide the City of Saint John with a clear path to move forward (using the flood mitigation action plan resulting from this project) by allowing the City to incorporate mitigation projects into future capital budgets. Description The Lower Cove area of the City of Saint John is located adjacent to the Saint John Harbour (which is fed by the Bay of Fundy with the highest tides in the world). As climate change is causing more extreme weather events (such as tropical storms, hurricanes), the resulting high winds are causing more storm surge events. These events, in addition to tidal impact and Sea Level Rise, are causing flooding of the Lower Cove Sewer System and it is expected that these events will become more frequent in the future with climate change. The sanitary sewer system in the Lower Cove area of Saint John includes a sanitary lift station and associated sewer collection system infrastructure. The storm sewer in the Lower Cove sewer system discharges through outfalls into the Saint John Harbour. When the water levels in the Harbour are high, the adjacent Lower Cove infilled land becomes saturated. As a result, there are multiple locations where the Lower Cove sanitary system gets flooded. Flooding of the sanitary collection systems puts nearby buildings at risk of sewer backup and impacts operation of the downstream sewage lift station. The Flood Risk Mitigation Strategy for Lower Cove would investigate the impact of the tides, storm surge and Sea Level Rise on the Lower Cove Sewer System and determine a strategy for mitigating the effects of coastal flooding on the City's infrastructure in this area. Expected Outcomes The City of Saint John would have a strategy for mitigating the effects of coastal flooding on the City's infrastructure in this area. Official Languages !Any communications from New Brunswick regarding its NDMP project(s) to the public obligations under section IV of the Official Languages Act. !New Brunswick will follow the language legislation and/or policies of its own jurisdiction. !New Brunswick will consider the needs of official language minority communities in relation to any stakeholder engagement activity, and provide the documents and materials in both official languages when required. 21 Annex A.3: Work Plan Project Title: Flood Risk Mitigation Strategy for Lower Cove Loop 22 23 Annex B.1 - Project Budget Revenues for Fiscal Year 2021-2022 Project Title: City-Wide Flood Risk Profile Phase 2, City of Fredericton Government Funding (municipal, provincial, territorial and federal) Amount Public Safety Canada $75,000.00 City of Fredericton $75,000.00 Subtotal Cash $150,000.00 City of Ottawa $2,500.00 NB Dept Envir & Local Govt $2,500.00 Saint Mary's First Nation $1,500.00 Subtotal In-kind $6,500.00 Total Government Funding Government assistance 100% (municipal, provincial, territorial and federal) $156,500.00 cannot exceed 100% of eligible expenditures Non-government Funding and other Subtotal Cash $0.00 Subtotal In-kind $0.00 Total Non-government Funding and other $0.00 Total Revenues: $156,500.00 1.!Cash: actual dollar value or revenues/funding received 2.!In-Kind: non-cash input which is given a cash value 24 Annex B.1 - Project Budget Eligible Expenses for Fiscal Year 2021-2022 Project Title: City-Wide Flood Risk Profile Phase 2, City of Fredericton Eligible Expenditures Non Detailed Eligible Expenditures by Public Safety Other Government Category Canada Government Total Funding and Funding Funding other Consultant fees (project $75,000.00 $75,000.00 $150,000.00 management) Subtotal Cash $75,000.00 $75,000.00 $0.00 $150,000.00 Flood mapping and forecasting $2,500.00 $2,500.00 Other incurred costs that are directly attributed to the $1,500.00 $1,500.00 implementation of permanent structural and non-structural flood mitigation measures Professional services support $2,500.00 $2,500.00 Subtotal In-kind $6,500.00 $0.00 $6,500.00 Total Expenditures: $75,000.00 $81,500.00 $0.00 $156,500.00 1.!Cash: actual dollar value or revenues/funding received 2.!In-Kind: non-cash input which is given a cash value 25 Annex B.2 - Project Budget Revenues for Fiscal Year 2021-2022 Project Title: Flood Risk Mitigation Master Plan Expansion Government Funding (municipal, provincial, territorial and federal) Amount Public Safety Canada $71,587.50 Town of Sussex $53,691.00 Village of Sussex Corner $17,896.50 Subtotal Cash $143,175.00 Town of Sussex $7,500.00 Subtotal In-kind $7,500.00 Total Government Funding Government assistance 100 і (municipal, provincial, territorial and federal) $150,675.00 cannot exceed 100% of eligible expenditures Non-government Funding and other Subtotal Cash $0.00 Subtotal In-kind $0.00 Total Non-government Funding and other $0.00 Total Revenues: $150,675.00 1.!Cash: actual dollar value or revenues/funding received 2.!In-Kind: non-cash input which is given a cash value 26 Annex B.2 - Project Budget Eligible Expenses for Fiscal Year 2021-2022 Project Title: Flood Risk Mitigation Master Plan Expansion Eligible Expenditures Non Detailed Eligible Expenditures by Public Safety Other Government Category Total Canada Government Funding and Funding Funding other Consultant fees $71,587.50 $71,587.50 $143,175.00 Subtotal Cash $71,587.50 $71,587.50 $0.00 $143,175.00 Land use planning controls $2,500.00 $2,500.00 Other permanent structural flood mitigation measures and costs $2,000.00 $2,000.00 related to post-flood finishing measures Public awareness and education $3,000.00 $3,000.00 Subtotal In-kind $7,500.00 $0.00 $7,500.00 Total Expenditures: $71,587.50 $79,087.50 $0.00 $150,675.00 1.!Cash: actual dollar value or revenues/funding received 2.!In-Kind: non-cash input which is given a cash value 27 Annex B.3 - Project Budget Revenues for Fiscal Year 2021-2022 Project Title: Flood Risk Mitigation Strategy for Lower Cove Loop Government Funding (municipal, provincial, territorial and federal) Amount Public Safety Canada $45,000.00 City of Saint John $45,000.00 Subtotal Cash $90,000.00 City of Saint John $5,000.00 Subtotal In-kind $5,000.00 Total Government Funding Government assistance 100 і (municipal, provincial, territorial and federal) $95,000.00 cannot exceed 100% of eligible expenditures Non-government Funding and other Subtotal Cash $0.00 Subtotal In-kind $0.00 Total Non-government Funding and other $0.00 Total Revenues: $95,000.00 1.!Cash: actual dollar value or revenues/funding received 2.!In-Kind: non-cash input which is given a cash value 28 Annex B.3 - Project Budget Eligible Expenses for Fiscal Year 2021-2022 Project Title: Flood Risk Mitigation Strategy for Lower Cove Loop Eligible Expenditures Non Detailed Eligible Expenditures by Public Safety Other Government Category Canada Government Total Funding and Funding Funding other Consultant fees $45,000.00 $45,000.00 $90,000.00 Subtotal Cash $45,000.00 $45,000.00 $0.00 $90,000.00 Development of disaster mitigation $5,000.00 $5,000.00 plans Subtotal In-kind $5,000.00 $0.00 $5,000.00 Total Expenditures: $45,000.00 $50,000.00 $0.00 $95,000.00 29 ANNEX C REPORTING REQUIREMENTS AND PAYMENT SCHEDULE Progress Payments (for each applicable project) Reporting Due Period Covered for Payment Amount and Schedule Payment Dates payments required documents Date October 2021 April 1 to 30 days from the !Initial cashflow receipt of the statement with September 30 actuals for Q1 and Q2 reporting !Interim project (Q1 and Q2) report April 2022 October 1 to 30 days from the !Updated cashflow receipt of the statement with March 31 reporting actuals for Q3 and Q4 !Interim project (Q3 and Q4) report Final Payment (Holdback) at the end of the agreement !Final payment (holdback) from Public Safety Canada (PS) is released upon receipt and approval of the Final Project Report and the Final cashflow statement of each project in this agreement. !Final Payment (holdback) = 3% of PS contribution amount. !The final cashflow statement (with actuals from all fiscal years) and the final project report for each specific project must be submitted to PS no more than ninety (90) days after the stated end date. !The Final Payment (holdback) will be provided within 30 days from the receipt of the reporting of the final cashflow statement and final project report. 30 31 STATEMENT ANNEX D CASHFLOW ANNEX E Eligible Budget Categories of the Program # Category 1 New research and data collection. 2 Flood mapping and forecasting. 3 Flood resistant construction techniques. 4 Hazard mapping and forecasting. 5 Professional services support Purchase of equipment used to undertake mitigation and/or support the implementation of 6 permanent structural mitigation measures 7 Building community partnerships for the purpose of disaster risk reduction. 8 Consultant fees. 9 Hazard, impact, risk, vulnerability and assessments. 10 Development of disaster mitigation plans. 11 Public awareness and education. 12 Building standards and enforcement. 13 Non-structural retrofitting. 14 Land use planning controls. 15 Planning and feasibility activities for structural mitigation investments Non-structural measures that will enhance proactive whole-of-community flood mitigation 16 measures and resilience to associated hazards and risks 17 Post-flood finishing costs for measures undertaken within the eligible period. 18 Measures taken to protect primary residences only. 19 Exceptional salary costs, benefits and incidentals. 20 Exceptional administrative costs. 21 Materials. 22 Facilities. 23 Exceptional transportation costs. Other incurred costs that are directly attributed to the implementation of permanent 24 structural and non-structural flood mitigation measures. 32 ANNEX F National Disaster Mitigation Program Non-Financial Report Template Reporting Requirements: The funding recipient must submit a project report that will indicate the Project implementation status, results achieved in accordance with its own performance management framework, project risk information update, and the financial expenditure requirements against the intended use and in accordance with Eligible Expenditures. The frequency of the reporting is indicated at Annex C. -Financial Project Report NDMP Work Plan Template that is completed as part of the Project Proposal. Instructions for submitting a NDMP Non-Financial Project Report are as follows: A) General Information: 1.!Enter the name of your Province / Territory. 2.!Enter the Project Title of the project for which you are providing a report. 3.!Identify if this Non-Financial Project Report is an Interim or a Final report. 4.!Enter the Reporting Period of this Non-Financial Project Report by entering the start date and the end date of the reporting period. The reporting periods are indicated in Annex C. B) The Project Report Tables: Project table. 1.! of the following columns: ! Enter a key activity that is related to your project !-Enter the tasks that are required to complete the activity !Enter the outputs and/or products that will be produced as a result of the activity being completed !Enter the Human Resources that will lead and/or contribute to completing the activity. Enter the materials and/or equipment that will be essential for completing the activity. !Enter the start and end dates for completing the activity. ! Enter any additional comments and/or considerations that you feel are required to explain the status of the activity, and note any project risk information updates in this column. 2.! of the following columns: ! Enter a key activity that is related to your project !-Enter the tasks that are required to etc.) !Enter the outputs and/or products that will be produced as a result of the activity being completed and their current status etc.) 33 Enter the Human Resources that will lead and/or contribute to completing the activity. Enter the materials and/or equipment that will be essential for completing the activity. !Enter the planned start and end dates for completing the activity. Enter the justification(s) for not completing the activity, provide any additional comments and/or considerations that you feel are required to explain the status of the activity, and note any project risk information updates in this column. 3.!For the Official Languages related activities section, include the following information for each of the following columns: !Enter activity, event or other opportunity to promote Official Languages that has occurred during the reporting period. !List the Official Languages Communities impacted by the activity, event or other opportunity. ! Enter the date of the activity, event or other opportunity. 34 National Disaster Mitigation Program Non-Financial Project Report Province / Territory: _ Project Title: _ Project Report Type: or Reporting period: _ (enter start date) (enter end date) 1. Completed Project Activities Related Tasks Deliverable(s) Timelines Considerations/ Activity - / Resources (Start and Comments Product(s) End Dates) 1. 2. 3. 4. 35 2. Incomplete Project Activities (i.e. not started or not completed) Status of Status of Timelines Related Tasks Deliverables (Planned Considerations/ Activity Resources - (i.e. progress Start and Comments update) End Dates) 1. 2. 3. 4. 5. 36 3. Official languages related activities Have there been activities, events, or other opportunities conducted in a manner inclusive of both official language communities of Canada? Please provide details. Official Languages Communities Completed Activity Date impacted 37 COMMON COUNCILREPORT M&C No. 2021-152 Report Date May 12, 2021 Meeting Date May 17, 2021 Service Area Utilities and Infrastructure Services His Worship Mayor Don Darling and Members of Common Council SUBJECT: Contract 2021-07: Broadview Avenue (Charlotte Street to Carmarthen Street) Water, Sanitary and Storm Sewer Renewal and Street Reconstruction AUTHORIZATION Primary Author Commissioner/Dept. Head City Manager J. Brent McGovern / John Collin Michael Baker RECOMMENDATION It is recommended that Contract 2021-07: Broadview Avenue (Charlotte Street to Carmarthen Street) Water, Sanitary and Storm Sewer Renewal and Street Reconstruction be awarded to the low tenderer, Galbraith Construction Ltd., at the tendered price of $1,151,535.25 (including HST) as calculated based upon estimated quantities, and further that the Mayor and Common Clerk be authorized to execute the necessary contract documents. EXECUTIVE SUMMARY The purpose of this report is to recommend that Council award Contract 2021-07: Broadview Avenue (Charlotte Street to Carmarthen Street) Water, Sanitary and Storm Sewer Renewal and Street Reconstruction to the low Tenderer. PREVIOUS RESOLUTION February 22, 2021: M&C 2021-051 Utility and General Fund Revised 2021 Capital Programs approved. May 3, 2021: M&C 2021-135 Utility and General Fund 2021 Capital Programs Revision II approved. - 2 - REPORT BACKGROUND The approved 2021 General Fund and Water and Sewerage Utility Fund Capital Programs include funding for the reconstruction of Broadview Avenue from Charlotte Street to Carmarthen Street. The work involves the replacement of the existing watermain and sanitary sewer, installation of a new storm sewer for separation and full street reconstruction including new concrete curb, concrete sidewalk (Sydney Street to Carmarthen Street), grass medians, roadway granulars, asphalt, trees, and signage. TENDER RESULTS Tenders closed on May 11, 2021 with the following results, including HST: 1. Galbraith Construction Ltd., Saint John, NB $1,151,535.25 2. TerraEx Inc., Saint John, NB $1,203,388.75 3. Fairville Construction Ltd., Saint John, NB $1,296,737.70 4. Dexter Construction Company Limited, $1,471,482.50 Saint John, NB 1,448,559.55, including HST. ANALYSIS The tenders were reviewed by staff and all were found to be formal in all respects. Staff is of the opinion that the low tenderer has the necessary resources and expertise to perform the work and recommend acceptance of their tender. FINANCIAL IMPLICATIONS The Contract includes work that is charged against the 2021 General Fund and Water and Sewerage Utility Fund Capital Programs. This project is partially funded by the Integrated Bilateral Funding program. Assuming award of the Contract to the low tenderer, an analysis has been completed which includes the estimated amount of work that will be performed by the Contractor and Others. The analysis is as follows: Budget $ 1,410,000 Project net cost $ 1,273,500 Variance (surplus) $ 136,500 - 3 - POLICY TENDERING OF CONSTRUCTION CONTRACTS The recommendation in this report is made in accordance with the provisions of Specifications, and the specific project specifications. STRATEGIC ALIGNMENT rity for Valued Service Delivery, specifically as it relates to investing in sustainable City services and municipal infrastructure. During the Design Phase of the work for this project a review of the Central Peninsula Secondary Plan (The Plan) was completed. The Plan contains several Policies and Proposals relating to the Central Peninsula. Throughout the engagement process in developing the Plan, more street trees and greening was identified as a community priority. With respect to Broadview Avenue, the Plan has included the priorities for more trees and greening, specifically between Sydney Street and Wentworth Street, to support the policy of facilitating the potential future transition of the Barrack Green Armoury to a major new community, arts and culture or education hub that will drive employment. The reconstruction of Broadview Avenue supports the above through the replacement of asphalt curbs with concrete curbs and asphalt sidewalks (Sydney Street to Carmarthen Street) with new concrete sidewalks, new grass median and the planting of street trees. In addition, access ramps will be installed in the sidewalks at pedestrian crossings that will be flush to the asphalt roadway surface to remove any barriers to access by all users of the pedestrian transportation infrastructure. SERVICE AND FINANCIAL OUTCOMES The municipal infrastructure on this street is in poor condition and requires replacement. The renewal of the infrastructure will reduce the likelihood of future service disruptions to the residents due to infrastructure failures. The storm water and sanitary sewer flows will also be separated on this section of Broadview Avenue. INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS This report was reviewed with Public Works and Transportation Services. ATTACHMENTS N/A /h…b/L\[w9thw M&C No. 2021-157 Report Date May 12, 2021 Meeting Date M ay 17, 2021 Service Area Public Safety- Fire Department His Worship Mayor Don Darling and Members of Common Council SUBJECT: Fire Service Review Reserve Funding OPEN OR CLOSED SESSION This matter is to be discussed in open session of Common Council. AUTHORIZATION Primary Author(s) Commissioner/Dept. Head City Manager Kevin Clifford Kevin Clifford John Collin RECOMMENDATION "It is recommended that Common Council approve the transfer of $95,800.00 (plus applicable HST) from the General Fund Operating Reserves to fund the cost of the Fire Service Review as part of the approved restructuring plan" EXECUTIVE SUMMARY nd At its meeting of March 222021 Common Council approved the staff recommendation to accept the proposal submitted by Pomax Consulting Inc for the purpose of conducting the fire service review and creating a fifteen-year strategic plan for the citys fire service. In June of 2020 Common Council authorized a fire service review per the recommendation of the 2020 Ernst & Young sustainability assessment. The authorized fire service review is to consider the City of Saint John financial policies, the risk profile of the community, and applicable National Fire Protection Association (NFPA) Standards. The identified fire service review will map out an affordable fire service strategy and applicable fire service level for the City of Saint John for the next 15 years. The actual execution of the fire service review process has been delayed by both the COVID-19 world-wide pandemic and the November 2020 Cyber-attack. It is anticipated that the review process will be able to start within the next few weeks and as such the applicable resources to cover the expenditure need to be finalized. - 2 - PREVIOUS RESOLUTION March 22, 2021: That as recommended by the City Manager in the submitted report M&C 2021- 084: Fire Service Review Successful Proponent, the proposal submitted by Pomax Consulting Inc. for the Fire Service Review and Fifteen -Year Strategic Plan, in the amount of $95,800.00 plus HST, be accepted; and further that the Mayor and Common Clerk be authorized to execute the necessary contract documents. June 22, 2020: RESOLVED that as recommended by the City Manager in the submitted report M&C 2020-154: Sustainability and Fire Service Workforce Adjustment, Common Council approves the following 12 & 12 reduction model as it relates to identifying the $1.875M cost reduction that the fire service is responsible for as part of the 2021/2022 sustainability plan which necessitates that: !Council authorizes the closure of No. 8 Fire Station in Millidgeville and terminates fire response operations from that location. !Council authorizes a reduction of 12 permanent firefighters from the establishment of the Saint John Fire Department. The 12 permanent firefighters shall consist of one Captain, one Qualified Captain, two Lieutenants, four Qualified Lieutenants and four Firefighters. !Council authorizes that the maximum compliment of Holiday Relief Firefighters be reduced by 12 such that the maximum number of Holiday Relief Firefighters employed at any one time is 20. !While Council ado for the sustainability plan. condition that the financial target for both 2021 & 2022 is attained. !Council authorizes a fire service review. The fire service review shall consider the City of Saint John financial position, the risk profile of the community, and applicable NFPA standards. The review will be tasked to map out a fire service strategy and applicable fire service level for the City of Saint John for the next 15 years. STRATEGIC ALIGNMENT Providing financial resources from operating reservices to support the fire service review and 15-year strategic plan aligns with Councils priority of sustaining a Vibrant Safe City. The fire service review and resultant 15-year - 3 - strategic plan will ensure the future delivery of an efficient / sustainable public safety service that addresses the evolving needs of the community. Supporting the cost of the review through municipal reserves is aligned to the principle that reserves are established for the purpose of unique challenges and initiatives such as restructuring and reset processes and ensuring that appropriate vision has been identified into the future. SERVICE AND FINANCIAL OUTCOMES Transferring $95,800.00 (plus applicable HST) from the General Fund Operating Reserves to fund the cost of the Fire Service Review is an appropriate expenditure for setting the fire service direction for the next 15 years. A comprehensive review of the Saint John Fire Service in the context of community hazards, risk profile, and established financial policies has never been completed. The subsequent identification of an affordable 15-year strategic plan for the Cityservice that can be provided, as it relates to the financial polies of the city, to those who visit, work, play, and live in the City of Saint John. INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS Finance Department has reviewed this document. Strategic Affairs has reviewed this document. Supply Chain Management has reviewed this document. ATTACHMENTS N/A /haahb /h…b/L\[w9thw M&C No. 2021-148 Report Date May 12, 2021 Meeting Date May 17, 2021 Service Area Strategic Services His Worship Mayor Don Darling and Members of Common Council SUBJECT: // wĻƭƷƚƩĻ tĻĻƌ tğƩƉźƓŭ DğƩğŭĻ OPEN OR CLOSED SESSION This matter is to be discussed in open session of Common Council AUTHORIZATION Primary Author Commissioner/Dept. Head City Manager Sarah Ranson Stephanie Rackley-Roach / John Collin Kevin Fudge RECOMMENDATION The City Manager recommends that: 1.!Common Council approve the expenditure of funds of $63,855.71 plus HST to restore CCTV (closed-circuit television) functionality at the Peel Plaza Parking Garage, and; 2.!Authorize the City Manager to sign the quote from Atlantic Alarm and Sound Ltd. to indicate the prices, specifications and conditions are satisfactory and accepted; and to authorize work to begin. EXECUTIVE SUMMARY Due to information technology infrastructure, staff is requesting funds be approved for the restoration of CCTV (closed-circuit television) functionality at the Peel Plaza Parking Garage. This recovery project was not budgeted for in the 2021 operating budget. Although the cost will be submitted as part of the insurance claim for recovery efforts related to the cyberattack, staff is seeking approval for this unbudgeted expenditure. CCTV functionality is related to safety and security at this location. PREVIOUS RESOLUTION N/A - 2 - REPORT is requesting funds be approved for the restoration of CCTV at the Peel Plaza Parking Garage. The quote includes the licensing, labour, and equipment necessary to restore security surveillance using closed-circuit television at the parking garage. Atlantic Alarm and Sound was selected as the vendor after receiving three quotes for this work as per the Procurement Policy. Their quote matched the technical requirements and was the lowest cost. STRATEGIC ALIGNMENT Valued service delivery and a safe City are Council priorities. The CCTV technology helps keep citizens safe when parking at the Peel Plaza garage. SERVICE AND FINANCIAL OUTCOMES The cost to restore CCTV functionality to the Peel Parking Garage is $63,855.71 plus HST. An estimate of this expense was noted in the recovery costs report presented to the Finance Committee on March 31, 2021 and receive and filed by Council on April 6, 2021. The recovery project was not budgeted for in the 2021 operating budgets and will be included when City staff submit the insurance claim. INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS Supply Chain Management was consulted and supports the recommendations. ATTACHMENTS N/A COMMON COUNCILREPORT M&C No. 2021-149 Report Date May 10, 2021 Meeting Date May 17, 2021 Service Area Strategic Services His Worship Mayor Don Darling and Members of Common Council SUBJECT: Emergency Alerts Voicemail and Text Service OPEN OR CLOSED SESSION This matter is to be discussed in open session of Common Council. AUTHORIZATION Primary Author Commissioner/Dept. Head City Manager Stephanie Rackley-Roach Kevin Fudge John Collin RECOMMENDATION The City Manager recommends that: 1.!The City expend $0.02 per voicemail and text message sent during an emergency event for emergency alert services from Twilio Inc. until the service is terminated within 30 days of written notice; and further 2.!That the City accept erms of Service for sending out emergency alerts ; and further 3.!That the Mayor and Clerk be authorized to execute any necessary documents to effect the use of the Twilio emergency alert service. EXECUTIVE SUMMARY The City has used Sentinel as an emergency alert system for many years. With the launch a subscription with Twilio, a cloud communication platform. Unlike the current notification system that is an annual subscription regardless of how many emergency alerts are created, the City only pays for the alerts that are created. It is expected that the City will save approximately seventy-five percent of the current costs with moving to Twilio. Council is being asked to approve the terms of service. PREVIOUS RESOLUTION N/A - 2 - REPORT With the redesigned saintjohn.ca, there is an opportunity to realize cost savings through implementing another communications tool for emergency alerts. The City currently has an agreement with Sentinel Emergency Solutions. This agreement expires in June of 2021. The City pays an annual cost for the solution regardless of the number of emergency alerts the City sends out. Twilio is a cloud communications platform that charges fees on a consumption basis. The City plans to use the voicemail and text service offerings from Twilio to send out emergency alerts. The City is only charged for emergency communications that are sent out. The City will be billed monthly for usage. Considerations in selecting a vendor include security, meeting Canadian legislative bsite, and cost. This product meets these criteria. The TOS is a binding contract between the City and Twilio for email delivery services. The documents included in the TOS can be found attached to this report. STRATEGIC ALIGNMENT -focused, valued service delivery through innovation, technology, and partnerships. Twilio is a commonly used cloud communications platform. SERVICE AND FINANCIAL OUTCOMES Costs are based on the number of emergency alerts that are sent. The monthly cost will vary based on actual consumption. Based on an average of three annual emergencies and approximately twelve alerts per event, the cost to use Twilio for voicemail and text is approximately $2,400 plus applicable taxes annually. This estimated annual amount would increase or decrease based on actual emergency events. The annual cost of Sentinel is approximately $22,000. If the City increased communications throughout the year for emergencies, at least seventy-five percent of the current annual costs for emergency alerts would be saved, if not more. INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS General Counsel has reviewed the Twilio Terms of Service. The Communications Service Area and Saint John Emergency Measures Organization was consulted and agreed with the use of Twilio for sending communications to citizens via voicemail and text. - 3 - Supply Chain Management has reviewed and is supportive of the recommendation of ATTACHMENTS Appendix A Twilio Terms of Service Appendix B Amendment to the Global Twilio Terms of Service for Customers in Japan Appendix C Acceptable Use Policy Appendix D Data Protection Addendum Appendix E Security Overview for Twilio Services and SendGrid Services Appendix G Service & Country Specific Requirements Appendix H Twilio Messaging Policy Appendix I European Electronic Communications Code Rights Waiver Appendix J Supplier Purchase Order Terms and Conditions DC services Appendix L Flex Zendesk Terms Appendix M Partner Program Policies Appendix N Partner Terms of Service (PTOS) Appendix O Acceleration Program Participation Terms Appendix P Twilio Frontline App Terms Appendix R Twilio Trademark Usage Guidelines Appendix S Twilio's Binding Corporate Rules Appendix T Twilio CCPA Notice Appendix U Twilio Cookie Notice Appendix V Data Protection Addendum Appendix W GDPR Appendix X Twilio Privacy Statement Appendix Z Twilio Sub-Processors Appendix AA Frontline Privacy Statement Appendix AB Twilio Referral Program Terms and Conditions Appendix AC Government Requests Appendix AD Twilio Transparency Reporting Appendix AE Submitting Subpoenas and Civil Requests to Twilio Appendix A Twilio Terms of Service These Terms of Service are effective on February 1, 2021 for all customers agreeing to these Terms of Service for the first time. If you have previously agreed to a version of our Terms of Service before February 1, 2021, please note that these Terms of Service will be effective on March 15, 2021 and completely replace the prior version available here. Please be aware that by continuing to use our services as of March 15, 2021, you are accepting these updated Terms of Service. If you have a separate written agreement with Twilio, then these Terms of Service will not apply to you. An overview of the updates made to these Terms of Service and our Acceptable Use Policy is available here. As part of these updates, we have not changed your ability to use our services. You may continue to access your account and use our services as you always have. Table of Contents !1. Changes to These Terms !2. Account Creation and Information !3. Provision of the Services !4. Your Responsibilities !5. Your Affiliates !6. Fees and Payment Terms !7. Ownership, Use of Customer Data, and Confidentiality !8. 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If you keep using our services after these terms have changed and gone into effect, that means you have stop using our services immediately. We may update these Terms from time to time. We will provide you with prior written notice of any material updates at least thirty (30) days in advance of the effective date; provided, however, we may not be able to provide at least thirty (30) days prior written notice of material updates to these Terms that result from changes in law, regulation, or requirements from telecommunications providers. Notice will be given in accordance with Section 13.5 (Notices). This notice will highlight the intended updates. Except as otherwise specified by us, updates will be effective upon the effective date indicated at the top of these Terms. The updated version of these Terms will supersede all prior versions. Following such notice, your continued use of the Services on or after the effective date of the updated version of these Terms constitutes your acceptance of such updated Terms. If you do not agree to the updated version of these Terms, you must stop using the Services immediately. 2. Account Creation and Information If you want to use our services, you need to create an account. To create an account, you need to give us some information about yourself. The information you provide must be true and kept up to date. If you violate these terms, you are not allowed to create new accounts until you fix the violation. To use the Services, you will be asked to create an account. As part of the account creation process, n being by providing a telephone number to which we will send you a verification code to enter into an online form. Until you create an account, your access to the Services will be limited to what is available to the general public. When creating an account, you must provide true, accurate, current, and complete information about yourself as requested during the account creation process. You must keep that information true, accurate, current, and complete after you create each account. As part of our ongoing and routine monitoring of account activity and to help us reduce the risk of fraudulent use of your account and the Services, you will initially be limited in the number of text messages you can send while we are activating your account or when you have not used an account for a period of at least six (6) months. If you breach these Terms, including, without limitation, your payment obligations in Section 6 (Fees and Payment Terms), you are strictly prohibited from creating new accounts until you remedy such breach in full. 3. Provision of the Services We want to make our services available for you to use 24/7, but things happen that occasionally make our services unavailable service level agreement (SLA). You may use our APIs and published documentation with your software applications or services that your end users can use so long as you and your end users comply with these terms and our Acceptable Use Policy. 3.1 Our Responsibilities. We will (a) make the Services available to you in accordance with these Terms, our documentation, including any usage guides and policies for the Services contained in such Documentation specifies mutually agreed upon rates for certain Services and other commercial terms, including any Order Form Service Level Agreement fo SLA Security Overview for the Services, each of which may be updated from time to time; (c) provide the Services in accordance with laws applicable to our provision of the Services to our customers generally (i.e. without regard for your particular use of the Services), subject to your use of the Services in accordance with these Terms, the applicable Documentation, and any applicable Order Form(s); (d) make commercially reasonable efforts to use industry standard measures designed to scan, detect, and delete code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (e) if applicable, use trained, qualified personnel to provide the Services; and (f) use commercially reasonable efforts to provide you with applicable support for the Services as described in our Support Terms. You have the choice to use our beta offerings (e.g., services that are in alpha, beta, limited release, etc.), 3.2 Beta Offerings. From time to time, Twilio may make Services that are identified as alpha, beta, not generally available, limited release, developer preview, or any similar Services offered by us (collectively, Beta Offerings may discontinue Beta Offerings at any time, in our sole discretion, and decide not to make a Beta Offering generally available. We can suspend our services to you for several reasons: (a) You or your end users violate these terms, including our Acceptable Use Policy; (b) You send fraudulent traffic using our services or your use of our services negatively impacts the operation of our services; (c) Legal or regulatory conditions make it impractical for our services to operate; (d) in advance if we can, but cannot guarantee this. We will also try to limit the suspension if we can. 3.3 Suspension of Services. We may suspend the Services immediately upon notice to you for cause if: (a) you or an End User (as defined below) materially breaches (or we believe that you or an End User has materially breached) any provision of these Terms, including any obligations under our Acceptable Use Policy; (b) there is an unusual and material spike or increase in your use of the Services and we believe that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services; (c) we determine that our provision of the Services is prohibited by applicable law or regulation; (d) there is any use of the Services by you or an End User that in our judgment threatens the security, integrity, or availability of the Services; or (e) information in your account is untrue, inaccurate, or incomplete. However, we will use commercially reasonable efforts under the circumstances to (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) where practicable, limit the suspension based on the circumstances leading to the suspension (e.g., to certain phone numbers, sub-accounts, or other subset of traffic); and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved. If your account is blocked because you are operating in a country or region prohibited under Section 8.3 (Export Controls), you will receive notice of your account being inoperable when you attempt to log into your account in such restricted country or region. If we suspend the Services pursuant to this Section 3.3 or Section 6.3 (Payment Terms), we will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur in connection with any such suspension. SLA may change over time. -compatible. We may also backwards-compatible. 3.4 Changes to the Services. The features and functions of the Services, including the Twilio APIs and our SLA, may change over time; provided, however, we will not materially decrease the overall functionality of the Services. It is your responsibility to ensure each Customer Application (as defined below) is compatible with the then-current Services. Although we try to avoid making changes to the Services that are not backwards-compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementation. In the event we make a non-backwards compatible change to a Twilio API and such change materially and negatively impacts Adverse API Change we may agree to work with you, in our sole discretion, to resolve or otherwise address the Adverse API Change, except where we, in our sole discretion, have determined that an Adverse API Change is required for security reasons, by telecommunications providers, or to comply with applicable law or regulation. 4. Your Responsibilities keep in mind when using the services: applications you develop or services you offer; pt as allowed to make the services available to end users as part of the software applications or services you offer; (c) Acceptable Use Policy, and any laws or regulations; (d) (e) You'll prevent unauthorized access to or use of our services; ises in Section 8 (Representations, Warranties, and Disclaimer). Twilio has no liability for any unauthorized use under your account. You will: (a) be solely responsible for all use of the Services and Documentation under your account, including the quality and integrity of any data and other information made available to us by or for you Customer Data application or service that you make available to End Users that interfaces with the Services (each, a Customer Application to third parties (except to make the Services available to End Users in connection with the use of each Customer Application as permitted under these Terms) or offer them on a standalone basis; (c) use the Services only in accordance with these Terms, our Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (d) be solely responsible for all acts, End User entation, our Acceptable Use Policy, and any applicable Order Form(s); (e) do your best to prevent unauthorized access to or use of the Services and notify us promptly of any such unauthorized access or use; (f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (g) comply with the representations and warranties you make in Section 8 (Representations, Warranties, and Disclaimer). We will not be liable for any loss or damage arising from unauthorized use of your account. 5. Your Affiliates Your affiliates (namely a parent company or a subsidiary that your company controls) may not use our services under these terms. Each of your affiliates must create its own account and accept and agree to these terms individually. Your Affiliates are not permitted to use the Services under these Terms that you accepted. Each of your Affiliates that wants to use the Services must accept these Terms individually and create its own account. 6. Fees and Payment Terms You agree to pay the fees generated under your account. agreed upon fees for certain services, then you will pay the applicable rates listed at twilio.com/pricing. If you use our services causes us to incur additional costs, fines, or penalties, we will automatically bill you for it. 6.1 Fees. You agree to pay fees in accordance with the then-current applicable rates available at twilio.com/pricing, unless otherwise set forth in the applicable Order Form(s). Additionally, we will charge you, and you will pay, in accordance with Section 6.3 (Payment Terms), any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunications provider as a result of your use of the Services. You also agree to pay all applicable taxes and communications surcharges (e.g., pass-through carrier fees). If you are exempt from paying any taxes or communications surcharges, though, please let us know and provide us with the exemption information or proof. 6.2 Taxes and Communications Surcharges 6.2.1 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, communications, or withholding taxes Taxes our net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to us, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. 6.2.2 Communications Surcharges. All fees are exclusive of any applicable communications service or Communications Surcharges 6.2.3 Exemption. If you are exempt from paying certain Taxes or Communications Surcharges, you will provide the necessary exemption information as requested by us or a valid exemption certificate issued by the appropriate authority via e-mail to taxforms@twilio.com. You will be exempt on a going-forward basis once we approve your exemption request. If the appropriate authority determines, at any time, that you are not exempt from paying any Taxes or Communications Surcharges, you will promptly pay such Taxes or Communications Surcharges to us, plus any applicable interest or penalties. You will pay us for any services you use. If you pay by credit card, then you must make sure that you have topped your account up with sufficient funds to cover any fees you owe to us. If you do not have sufficient funds in your account to cover the fees owed to us or your credit card declines, then we may suspend our services to all of your accounts. If we approve you for invoicing, you agree to pay the fees owed to us in US dollars, unless we agree to another currency in writing, no later than 30 days after the date of the invoice. business days after the date on the late notice, then we may charge a late fee and/or suspend our services to all of your accounts. Please pay us on time. 6.3 Payment Terms. Payment obligations are non-cancelable and fees, once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 6.4 (Payment Disputes), you will make all of the payments due under these Terms in accordance with the following applicable payment method: 6.3.1 Credit Card Payment Terms. If you elect to pay by credit card, then you are responsible for either (a) enabling auto-recharge on your account or (b) ensuring that your account has a sufficient positive balance to cover all fees due. If, for any reason, you have a negative balance on your account or your credit card declines a charge for fees due, then we reserve the right to suspend the Services to all of your accounts. 6.3.2 Invoicing Payment Terms. If you elect to receive invoices and pay in arrears and we approve you for the same, then invoices will be sent to you via email as a PDF on a monthly basis. You will pay all of the undisputed fees under these Terms within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s) or an invoice to the extent you procure the Services without an Order Form, all fees are payable in United States dollars. If you are overdue on any payment of undisputed fees and fail to pay within ten (10) business days of written notice of your overdue payment, then we may (a) assess, and you will pay, a late fee of the lesser of 1.5% per month or the maximum amount allowable by applicable law (b) suspend the Services to all of your accounts until you pay the undisputed fees due plus any late fees. If you ever think that we charged you the wrong amount and you want to dispute it, then let us know, in writing, within 60 days of billing date for the charge in question. You have to be reasonable when disputing a charge. You must be acting in good faith and cooperating with us to resolve the dispute. 6.4 Payment Disputes. You will notify us in writing in the event you dispute any fees, Taxes, or Communications Surcharges paid or payable by you under these Terms. If you dispute any fees, Taxes, or Communications Surcharges, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. You will provide such notice to us within sixty (60) days of the date we bill you for such fees, Taxes, or Communications Surcharges due that are in dispute and the parties will work together to resolve the dispute promptly. 7. Ownership, Use of Customer Data, and Confidentiality your software applications or services, your confidential information, and your data. 7.1 Ownership. As between the parties, we exclusively own and reserve all right, title, and interest in and to the Services, the Documentation, our Confidential Information (as defined below), and any data, in anonymized or aggregated form that does not identify you, any End Users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. As between the parties, you exclusively own and reserve all right, title, and interest in and to each Customer Application, your Confidential Information, and Customer Data, subject to our rights to use and disclose Customer Data in accordance with these Terms. We can use and disclose any data that you provide to us while using our services in order to provide you with our services and according to our promises of confidentiality in Section 7.4 (Confidentiality) and the terms of our Data Protection Addendum and Privacy Notice. We are also not responsible if anything happens to your data outside of our network. If you do not agree with our Data Protection Addendum and Privacy Notice, you must stop using our services immediately. 7.2 Our Use of Customer Data. You instruct us to use and disclose Customer Data as necessary to (a) provide the Services consistent with this Section 7.2, Section 7.4 (Confidentiality), our Data Protection Addendum, and Privacy Notice, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Services, and (b) respond to any technical problems or your queries and ensure the proper working of the Services. You acknowledge that the Internet and liable for any changes to, interception of, or loss of Customer Data while in transit via the Internet or a If you do not agree with the terms of our Data Protection Addendum or Privacy Notice, you must stop using the Services immediately. Please let us know what you think about Twilio and our services. By the way, though, if you send us feedback, we own it and can use it however we choose. 7.3 Feedback. We welcome any recommendations, suggestions, improvement or correction requests, Feedback Please know, however, that by submitting Feedback to us, you agree that: (a) Feedback will not be treated as your Confidential Information; (b) we may use or disclose, or choose not to use or disclose, Feedback for any purpose and in any way; (c) we own any Feedback; and (d) you and any End User are not entitled to any compensation or reimbursement of any kind from us under any circumstances for Feedback. Neither party will tell anyone else about or use the confidential information that it got from the other party, except as agreed to in these terms. 7.4 Confidentiality. 7.4.1 Definition. Confidential Information Disclosing PartyReceiving Party 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, including, without limitation, any Order Form(s), Customer Data, the Documentation, security reports and attestations, audit reports, customer lists, pricing, phone numbers, concepts, technical information and materials of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of these Terms 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 (d) is independently developed by the receiving party without use of or reference to the Confidential Information of Disclosing Party. 7.4.2 Use and Disclosure. Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside the scope of these Terms and (b) disclose or make Confidential Information of Disclosing Party available to any party, nd Representatives this Section 7.4. 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 7.4. 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. Notwithstanding the foregoing, you may disclose to End Users our SOC2 or similar report, which w bound to terms of confidentiality that are at least as protective as the terms of this Section 7.4. Either party may disclose the confidential information it got from the other party if required by a law, regulation, subpoena, or a court order, if the parties fulfill certain conditions, such as providing notice (if legally allowed) and reimbursement of legal fees. 7.4.3 Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party if Compelled Disclosures ng Party gives Disclosing Party notice of a Compelled Disclosure (to the preparation of witnesses, deposition, and testimony to the extent such Compelled Disclosure is in connection with a lawsuit or legal proceeding to which Disclosing Party is a party or to the extent fees are incurred in connection with reasonable assistance provided to Disclosing Party in connection with st such Compelled Disclosure. Money alone may not be enough to make either party whole if the other party breaks its promise of confidentiality. So, the parties can seek other remedies (like gag orders), if needed. 7.4.4 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 7.4 and that, in the event of an actual or threatened breach of the provisions of this Section 7.4, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. 8. Representations, Warranties, and Disclaimer required permissions, including in a manner as required by law or regulation. In addition, we will only use and disclose this data according to Section 7.2 (Our Use of Customer Data) above. 8.1 Customer Data. You represent and warrant that you have provided, and will continue to provide, adequate notices and have obtained, and will continue to obtain, the necessary permissions and consents to provide Customer Data to us for use and disclosure pursuant to Section 7.2 (Our Use of Customer Data). We promise that our services will work the way we say they will in our documentation. 8.2 Services. We represent and warrant that the Services perform materially in accordance with the applicable Documentation. Our sole obligation, and your sole and exclusive remedy, in the event of any failure by us to comply with this Section 8.2 will be for us to, at our option, re-perform the affected Services or refund to you the fees you actually paid for the affected Services. Both of us must follow export control and economic sanctions laws, including those of the U.S. Each party swears that it, or its organization, is not on any government sanctions lists of people and organizations that U.S. companies are not allowed to do business with. 8.3 Export Controls. Each party will comply with export control and economic sanctions laws in all applicable jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States of America. You will obtain all licenses or other authorizations required to export, re- export, or transfer the Services. Each party represents that it (and, in your case, also End Users) is not on any government prohibited/denied/unverified-party, sanctions, debarment, or exclusion list Sanctions Lists-export, or transfer the Services to an entity on any Sanctions List without prior U.S. government or other required government authorization. You will (a) immediately discontinue your use of the Services if you are placed on any Sanctions List and (b) Except for a understand that we are not liable for anything that happens as a result of your use of our beta offerings, and we won't indemnify for them either. 8.4 DISCLAIMER. EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE SERVICES ARE PROVIDED OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. WE ADDITIONALLY DISCLAIM ALL WARRANTIES RELATED TO TH OBLIGATION TO INDEMNIFY FOR ANY BETA OFFERING WHATSOEVER. 9. Mutual Indemnification fines, damages, and costs awarded by a court or that we approve as part of a settlement. 9.1 Indemnification by Us. 9.1.1 Scope of Indemnification. We will defend you from and against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that our provision of the Services infringes or mi Infringement Claim will indemnify you from any damages, fines or penalties imposed by a government or regulatory body, ounts approved by us for an Infringement Claim. the right for you to continue to use our services or modify our services so they are no longer infringing. If we are unable to do either, then we may terminate these terms, close your account, and refund you any unused pre-paid fees. 9.1.2 Infringement Options. If your use of the Services has become, or in our opinion is likely to become, the subject of any Infringement Claim, we may at our option and expense: (a) procure for you the right to continue using the Services as set forth in these Terms; (b) modify the Services to make them non- infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms, or, if applicable, terminate the Services that are the subject of any Infringement Claim, and refund you any unused pre-paid fees. There are limits on what we indemnify you for. We will not pay for any fines, damages, or costs for: (a) A claim that was filed because you violated these terms; (b) Any intellectual property infringement claim that arises from your use of our services in combination with other applications, products, or services; or (c) Any of our services that are free of charge. 9.1.3 Limitations. We will have no liability or obligation under this Section 9.1 with respect to any Infringement Claim (a) arising out of your use of the Services in breach of these Terms; (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or (c) arising from Services for which there is no charge. If someone comes after us for: (a) You or your end users violation of Section 4 (Your Responsibilities) or (b) Something related to your software applications or services, then you have to fight that fight and cover the fines, damages, or costs awarded by a court or approved by you as part of a settlement. 9.2 Indemnification by You. You will defend us, our officers, directors, employees, and Affiliates (collectively, ) from and against any claim, demand, suit, or proceeding made or brought against a Twilio Indemnified Party by a third party alleging or arising out of (a) your or of a Customer Customer Indemnifiable Claims by a government or regulatory body, Party or for settlement amounts approved by you for a Customer Indemnifiable Claim. If either party wants to be indemnified by the other for a particular claim, then the party requesting indemnification needs to do certain things namely give notice of the claim, cooperate, and let the party providing the indemnification handle the defense or settlement of the claim. If these things are not done, then the other party may not have to provide the requested indemnification. See the legal language to the left for what is specifically required. 9.3 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party () will promptly notify the indemnifying party ( ) of any Infringement Claim or Customer Indemnifiable Claim (individually and collectively referred Claim ying Party of its obligations under this Section 9 except to the extent that Indemnifying Party was actually and materially prejudiced by such failure; (b) Indemnifying Party will have the sole and exclusive authority to defend or settle any Claim; and (c) Indemnified Party will reasonably cooperate with the defense of any Claim. Notwithstanding anything to the contrary in this Section 9, Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 9 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party, conditioned, or delayed. 9.4 Exclusive Remedy. exclusive remedy against, the other party for any third party claims. 10. Limitation of Liability Generally speaking, neither party owes the other party for any bad things that might indirectly result from our services or from a failure of a party to carry out its promises under these terms. 10.1 LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS 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 HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR I PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. Generally speaking, any direct damages either party might owe to the other party cannot be more than d (or should have paid) us in the previous 12-months for the specific services giving rise to the claim. 10.2 LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THESE TERMS FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT 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. The only exceptions that apply to the limitations in Section 10.1 and Section 10.2 are indirect and direct damages for your violation of Section 4 (Your Responsibilities) or Section 6 (Fees and Payment Terms) or for the claims covered under Section 9 (Mutual Indemnification). 10.3 UNLIMITED LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 10.2 (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 10.1 AND SECTION 10.2 DO NOT APPLY TO (a) YOUR BREACH OF SECTION 4 (YOUR RESPONSIBILITIES); (b) YOUR BREACH OF SECTION 6 (FEES AND PAYMENT SECTION 9 (MUTUAL INDEMNIFICATION). THE PROVISIONS OF THIS SECTION 10 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION 10 IN DETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS. 11. Use of Marks services on our website, in earnings releases and calls, and in marketing, promotional, or other materials available to the public according to your usage guidelines that you provide to us. You grant us the right to use your name, logo, and a description of your use case to refer to you on our website, earnings releases and calls, or marketing or promotional materials, subject to your standard trademark usage guidelines that you expressly provide to us. 12. Term, Termination, and Survival These terms become effective on the day you accept them and create an account to use our services. 12.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 12.2 (Termination) (). Either party may terminate these terms for any reason 30 days after informing the other party in writing. ntil all order forms have expired or been terminated. Termination will result in the closure of all of your accounts. 12.2 Termination. 12.2.1 For Convenience. Either party may terminate these Terms and close all of your accounts for any reason upon thirty (30) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, then these Terms will not terminate until such Order Form(s) has expired or been terminated in accordance with its terms. If the violation, then we may terminate these terms. Similarly, if we significantly violate these terms and telling us about the violation, then you may terminate these terms. Termination will result in the closure of all of your accounts. 12.2.2 Material Breach. We, at our sole discretion, may terminate these Terms and close all of your accounts in the event you commit any material breach of these Terms and fail to remedy such material breach within fifteen (15) days after we provide written notice of such breach to you. You may also terminate these Terms in the event we commit a material breach of these Terms and fail to remedy such material breach within fifteen (15) days after providing written notice of such material breach to us. Either party may also terminate these terms by providing the other party with written notice if the other party goes bankrupt or fails to continue its business. Termination will result in the closure of all of your accounts. 12.2.3 Insolvency. Subject to applicable law, either party may terminate these Terms immediately and close all of your accounts by providing written notice in 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. Some terms live on even after these terms end. That includes your payment obligations and the specific sections mentioned on the left. 12.3 Survival. Upon termination of these Terms, the terms of this Section 12.3, and the terms of the following Sections will survive (i.e. still apply): Section 3.1(b) (regarding our Security Overview), Section 6 (Fees and Payment Terms), Section 7 (Ownership, Use of Customer Data, and Confidentiality), Section 8.4 (Disclaimer), Section 9 (Mutual Indemnification), Section 10 (Limitation of Liability), Section 13 (General), and Section 14 (Dispute Resolution). 13. General e them against you later. If the various documents that are referred to in these terms seem to be in conflict, we explain which documents will prevail over the other ones. 13.1 No Waiver and Order of Precedence. No failure or delay by either party in exercising any right or enforcing any provision under these Terms will constitute a waiver of that right, provision, or any other provision. Any waiver must be in writing and signed by each party to be legally binding. Titles and headings of sections of these Terms are for convenience only and will not affect the construction of any provision of these Terms. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) these Terms, (3) our Acceptable Use Policy, and (4) the applicable Documentation. You cannot just transfer these terms or your obligations under these terms to someone else or another party without our permission first. We can transfer these terms or our obligations under these terms to someone else or another party without your permission. 13.2 Assignment. You will not assign, delegate, or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be null and void. We may assign, delegate, or otherwise transfer these Terms, in whole or in part, without your consent. Subject to this Section 13.2, these Terms will be binding on each party and each -employee relationship, joint venture, or a partnership. Nothing will change that. Each party will be responsible for its own employees and agents. 13.3 Relationship. Each party is an independent contractor in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer- employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its respective employees and agents and its respective labor costs and expenses arising in connection with its respective employees and agents. Each party will also be solely responsible for any and all claims, liabilities, damages, or debts of any type that may arise on account of each of its respective activities, or those of its respective employees and agents, in the performance of these Terms. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so. Except as explained in Section 14 (Dispute Resolution), if any part of these terms is not enforceable, the rest of these terms will still be enforceable. 13.4 Severability. Except as described in Section 14 (Dispute Resolution), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect. for personal delivery or mail and send a legalnotices@twilio.com, Attn: General Counsel. n your account or via your account portal. 13.5 Notices. Any notice required or permitted to be given under these Terms to us will be given in writing to the following address by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email: Twilio Inc. 375 Beale Street, Suite 300 San Francisco, CA 94105 Attention: General Counsel Email: legalnotices@twilio.com Notices given to us by personal delivery, certified mail, return receipt requested, or overnight delivery by a nationally recognized carrier will be copied to legalnotices@twilio.com, Attention: General Counsel. Any notice required or permitted to be given under these Terms to you will be sent via email to the email address you designate in your account or provided via your account portal. earthqua 13.6 Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of these Terms 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, including action or inaction of governmental, civil, or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster. The party affected by such cause will take all reasonable actions to minimize the consequences of such cause. t entity, these terms still apply to your use of our services. 13.7 Government Terms. We provide the Services, including any related software and technology, for ultimate federal government end use solely in accordance with these Terms. If you (or any End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Services were developed fully at private expense. n something and end up having a legal the best cities in the world! 13.8 Governing Law and Venue. The enforceability and interpretation of Section 14 (Dispute Resolution) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 14 (Dispute Resolution), these Terms will be governed by and interpreted in accordance with the laws of the State of California without regard to conflicts of laws and principles that would cause the laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 14 (Dispute Resolution), any legal suit, action, or proceeding arising out of or related to these Terms or the Services will be instituted in either the state or federal courts of San Francisco, California, and each party consents to the personal jurisdiction of these courts. you provide will not be binding or valid. 13.9 Entire Agreement. Except as provided in these Terms and any exhibits or attachments, applicable Order Form(s), or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, oral and written. No oral or written information or advice given by us, our agents, or our employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms. Any term or condition stated in your vendor registration form or registration portal or in any purchase order document or similar document provided by you will be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon will be null and void and have no effect with regard to these Terms between the parties and be non-binding against us even if signed by us after the date you accept these Terms. 14. Dispute Resolution Please, please, please reach out to our Customer Support team case. If our Customer Support te San Francisco, California. Arbitration means a professional arbitrator will decide how to resolve a dispute instead of a judge or a jury deciding the case. Before bringing a formal legal case, please first try contacting our Customer Support. Most disputes can be resolved that way. 14.1 Agreement to Arbitrate. If a dispute, claim, or controversy related to these Terms or the Services Disputes representatives will engage in good faith n amicably resolve a Dispute (except for Disputes set forth in Section 14.3 (Exceptions to Agreement to Arbitrate), which may be litigated in court). If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, the parties may commence binding arbitration in accordance with Section 14.2 (Details on Arbitration Procedure). If either party has a Dispute about whether this Section 14.1 can be enforced or applies to a Dispute between the parties, each party agrees that the arbitrator will decide that, too. Pursuant to this Section 14.1, you understand that you are giving up the right to have a judge and/or jury resolve any Dispute arising out of or related to these Terms or the Services. If the parties go to arbitration, then it will be arbitrated through the American Arbitration Association (AAA) with only one final and binding. 14.2 Details of Arbitration Procedure. Except for Disputes set forth in Section 14.3 (Exceptions to Agreement to Arbitrate), Disputes that have not been resolved between the parties will be submitted to binding arbitration, which will conducted by the American Arbitration Association (AAA). You can look at http://www.adr.org or you can call them at 1-800-778- 7879. The arbitration will be governed by the then- Rules extent anything described in this Section 14 conflicts with the Rules, the language of this Section 14 applies. Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 14 does not alter in any way the will be based on the evidence admitted and the substantive law of the State of California and the United States of America, as applicable, and will contain an award for each issue in Dispute. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any arbitration proceedings will take place in San Francisco, California. to court, like IP disputes and disputes about your violation of our Acceptable Use Policy. The parties also 14.3 Exceptions to Agreement to Arbitrate. Each party agrees it will go to court to resolve Disputes relating to: copyrights, or patents) or Acceptable Use Policy. Also, either party can bring a Dispute in small claims court either in San Francisco, California, or the county where you live, or some other location the parties agree on, if it qualifies to be brought in that court. In addition, if either party brings a Dispute in court that should be arbitrated or either party refuses to arbitrate a Dispute that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve such Dispute (i.e., compel arbitration). Either party may also ask a court to stop a court proceeding while an arbitration proceeding is ongoing. Neither party will bring a class action suit against the other party. If, for some reason, a court decides rceable, then this Section 14.4 will go away. 14.4 Class Action Waiver. Each party agrees that any Disputes between the parties must be brought against each other on an individual basis only. That means neither party can bring a Dispute as a plaintiff or class member in a class action, consolidated action, or representative action. An arbitrator cannot consolidated class or representative proceeding. Each par impact or otherwise be used to decide Disputes with other people or entities, including other Twilio customers. If a court decides that this Section 14.4 is not enforceable or valid, then this Section 14.4 will be null and void. But, the rest of these Terms will still apply. 15. Fun Let your imagination run wild with Twilio! You understand and acknowledge that developing software applications should be fun and easy, and by using the Services, you agree to let your imagination run wild. 16. Additional Terms These terms apply to you if you provide data from the EEA, UK, or Switzerland. 16.1 If we process personal data from the European Economic Area (EEA), Switzerland, or the United Kingdom on your behalf, you agree to the terms of our Data Protection Addendum incorporated by reference into these Terms. For more information about our compliance with the EU General Data Protection Regulation (GDPR), please click here. These terms apply to you if you reside in the EEA, UK, or Switzerland. 16.2 If you reside in the European Economic Area (EEA), Switzerland, or the United Kingdom, nothing in these Terms will exclude or limit the liability of either party for (i) gross negligence or intentional misconduct of such party; (ii) death or personal injury caused by such party's negligence; (iii) fraud or fraudulent misrepresentation; or (iv) any other liability to the extent that the same may not be excluded or limited as a matter of applicable law. These terms apply to you if you reside in Germany. 16.3 If you reside in Germany, we warrant that the Services will operate in accordance with the applicable Documentation and will materially comply with any specifications contained the applicable Documentation. The parties agree that to the extent you are entitled to any statutory warranty rights, the applicable statutory warranty period is hereby reduced to twelve (12) months and any and all further warranties are excluded. These terms apply to you if you are a microenterprise, small enterprise, or not for profit organisation in the EEA or UK. 16.4 If you are a microenterprise, small enterprise, or not for profit organisation and Twilio provides you with the Services within the European Economic Area or United Kingdom, you have read and agree to the European Electronic Communications Code Rights Waiver. These terms apply to you if you reside in Japan. 16.5 If you reside in Japan, these Terms are hereby amended by the Amendment to the Global Twilio Terms of Service, which will apply to you. Appendix B Amendment to the Global Twilio Terms of Service for Customers in Japan Last Updated: March 2, 2021 1. Parties to the Global Twilio Terms of Service Notwithstanding anything to the contrary in the preamble to the Global Twilio Terms of Service ( TermsAmendment into between you and 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, unless a particular Service requires contractually partnering with another entity (e.g., telecommunications connection services providing phone numbers in other jurisdic weusourTwilio in the Terms and this Amendment, will collectively refer to Twilio Japan GK and its Affiliates. Any capitalized term used in this Amendment but not defined will have the meaning provided to it in the Terms. In the event of any conflict between the Terms and this Amendment, this Amendment will prevail. 2. Intended Use of the Services The Services are intended for business use by corporate or business entities, and you agree that you will not use the Services for any personal or individual use. 3. Required Information & Verification Process Depending on the Services you use, you may be required to submit copies of government-issued ID documents to us and/or complete verification processes as required under applicable laws and regulations, including, without limitation, the Act on Prevention of Transfer of Criminal Proceeds and the Telecommunications Business Act. 4. Taxes and Communications Surcharges Taxes, as defined in Section 6.2.1 (Taxes) of the Terms, will include Japanese consumption tax. The universal service fee and the telephone relay service fee charged by telecommunication providers (e.g., carriers) will be borne by you as part of the Communications Surcharges set forth in Section 6.2.2 (Communications Surcharges) of the Terms. 5. Currency Notwithstanding anything to the contrary in Section 6.3.2 (Invoicing Payment Terms) of the Terms, all fees are payable in Japanese Yen, except as otherwise set forth in a writing, including in an applicable Order Form(s) or an invoice to the extent you procure the Services without an Order Form. 6. Intellectual Property Rights Any intellectual property rights vested by us under the Terms will include the rights set forth in Article 27 (Right o Japan, Act No. 48 of May 6, 1970. Further, you agree not to exercise against us or any other third parties designated by us any moral rights you may have in any contents, including, without limitation, the Feedback that we are entitled to exploit under the Terms. 7. Contact to Emergency Services You will not attempt to use the Services to contact or allow End Users to contact an official government- sponsored emergency telephone number (such as 110, 118, or 119) which is used to dispatch Emergency Services cannot use the Services to contact Emergency Services and (b) End Users must use alternative means apart from the Services in order to contact Emergency Services. If you require or desire to provide End Users the ability to contact Emergency Services, you must provide End Users with alternative means to do so at your own risk. 8. Anti-Social Forces You represent and warrant that you are not an Anti-Social Force (meaning here and hereinafter gangsters, right-wing groups, anti-social forces, and others equivalent thereto), and you do 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 presently and in the future. 9. Governing Law and Venue Notwithstanding Section 13.8 (Governing Law and Venue) and Section 14 (Dispute Resolution) of the Terms, which sections will not apply to Services provided in Japan, the Terms and this Amendment will be governed by and interpreted according to the laws of Japan (including its procedural rules) without regard to conflicts of laws and principles that would cause the laws of another jurisdiction to apply. The Terms and this Amendment will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any legal suit, action or proceeding arising out of or related to the Terms, this Amendment, or the Services will be brought before the Tokyo District Court, and the parties each consent to the personal jurisdiction of these courts. Appendix C Acceptable Use Policy Last Updated: January 1, 2021 AUPCustomer ServicesTwilio and any user of any software application or service made available by Customer that interfaces with the End User UP, Twilio may -mail, or by posting an updated version of this AUP at https://www.twilio.com/legal/aup. No Inappropriate Content or Users. Do not use the Services to transmit or store any content or communications (commercial or otherwise) that is illegal, harmful, unwanted, inappropriate, objectionable, confirmed to be criminal misinformation, or otherwise poses a threat to the public. This prohibition includes use of the Services by a hate group or content or communications that originate from a hate group or are exploitive, abusive, or hate speech. Prohibited Activities. Do not use the Services to engage in or encourage any activity that is illegal, including: !Violations of Laws. Violating any applicable laws, regulations, or industry standards or guidance Applicable Laws obtained prior to transmitting, recording, collecting, or monitoring data or communications or (b) compliance with opt-out requests for any data or communications. !Interference with the Services. Interfering with or otherwise negatively impacting any aspect of the Services or any third-party networks that are linked to the Services. !Reverse Engineering. Reverse engineering, copying, disassembling, or decompiling the Services. !Falsification of Identity or Origin. Creating a false identity or any attempt to mislead others as to the identity of the sender or the origin of any data or communications. No Service Integrity Violations. Do not violate the integrity of the Services, including: !Bypassing Service Limitations. Attempting to bypass, exploit, defeat, or disable limitations or restrictions placed on the Services. !Security Vulnerabilities. Finding security vulnerabilities to exploit the Services or attempting to bypass any security mechanism or filtering capabilities. !Disabling the Services. Any denial of service (DoS) attack on the Services or any other conduct that attempts to disrupt, disable, or overload the Services. !Harmful Code or Bots. Transmitting code, files, scripts, agents, or programs intended to do harm, including viruses or malware, or using automated means, such as bots, to gain access to or use the Services. !Unauthorized Access. Attempting to gain unauthorized access to the Services. Data Safeguards. Customer is responsible for determining whether the Services offer appropriate o, any safeguards required by Applicable Laws, prior to transmitting or processing, or prior to permitting End Users to transmit or process, any data or communications via the Services. Service & Country Specific Requirements. Additional requirements for specific Services, including any country specific requirements, are set forth at https://www.twilio.com/legal/service-country-specific- terms and apply solely to the extent Customer uses those specific Services. Violations of this AUP, including any prohibited content or communications, may be reported to https://www.twilio.com/help/abuse. Customer agrees to immediately report any violation of this AUP to Twilio and provide cooperation, as requested by Twilio, to investigate and/or remedy that violation. Appendix D Data Protection Addendum Last Updated: January 8, 2021 Addendum ment between Customer and Agreement I. Introduction 1.!Definitions. . "Applicable Data Protection Law" refers to a personal data under the Agreement including, without limitation, the General Data Protection Regulation (EU 2016/679) ("GDPR"). . , "processor", "data subject", "personal data", and"processing" (and"process") have the meanings given in accordance with Applicable Data Protection Law. . "Customer Account Data" including the names and/or contact information of individuals authorized by Customer to access Customer Account Data also includes any data Twilio may need to collect for the purpose of identity verification, or as part of its legal obligation to retain subscriber records. . "Customer Content" means (a) personal data exchanged by means of use of the Services, such as text, message bodies, voice and video media, images, email bodies, email recipients, and sound, and (b) data data Customer has uploaded to the SendGrid Services. . "Customer Data" has the meaning given in the Agreement. Customer Data includes Customer Account Data, Customer Usage Data, Customer Content, and Sensitive Data, as defined in this Addendum. . "Customer Usage Data" means data processed by Twilio for the purposes of transmitting or exchanging Customer Content, including data used to identify the source and destination of a communication, such context of providing the Services, and the date, time, duration and the type of communication and (b) activity logs used to identify the source of Service requests, optimize and maintain performance of the Services, and investigate and prevent system abuse. . "Privacy Policy" means the then-current privacy policy for the Services available at https://www.twilio.com/legal/privacy. . "Security Controls" organisational measures to protect Customer Data, or, if the Agreement has no such terms, then the Twilio Security Overview available at https://www.twilio.com/legal/security-overview. . "Security Incident" means a confirmed or reasonably suspected accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data. . "SendGrid Services" means the services and any application programming interface branded as manage email communications and other related digital communications and tools through the website at https://www.sendgrid.com, including all programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by Twilio. The SendGrid Services excludes any Twilio Services. . "Sensitive Data" means (a) social security number, passport number, dri identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account inal history; or (g) any other information or or any other applicable law relating to privacy and data protection. . "Services" means, collectively, the Twilio Services and SendGrid Services. . "Twilio Services" means the products and services provided under a Twilio account that are used by Customer, ordered by Customer under an Order Form, or offered on a trial basis or otherwise free of charge. The Twilio Services generally consist of: (a) platform services, namely access to any application works via the Internet. The Twilio Services excludes any SendGrid Services. Any capitalized term used but not defined in this Addendum has the meaning provided to it in the Agreement. II. Controller and Processor 2. Relationship of the Parties. 2.1 Twilio as a Processor. The parties acknowledge and agree that with regard to the processing of Customer Content, Customer may act either as a controller or processor and Twilio is a processor. 2.2 Twilio as a Controller of Customer Account Data. The parties acknowledge that, with regard to the processing of Customer Account Data, Customer is a controller and Twilio is an independent controller, not a joint controller with Customer. 2.3 Twilio as a Controller of Customer Usage Data. The parties acknowledge that, with regard to the processing of Customer Usage Data, Customer may act either as a controller or processor and Twilio is an independent controller, not a joint controller with Customer. 3. Purpose Limitation. Twilio will process personal data in order to provide the Services in accordance with the Agreement. Section 2.1 of Schedule 1 (Details of Processing) further specifies the duration of the processing, the nature and purpose of the processing, and the types of personal data and categories outlined in Section 5 (Customer Instructions). Twilio will process Customer Account Data and Customer Usage Data in accordance with Applicable Data Protection Law and consistent with the Privacy Policy, the Agreement, and this Addendum. 4. Compliance. Customer is responsible for ensuring that (a) it has complied, and will continue to comply, with Applicable Data Protection Law in its use of the Services and its own processing of personal data and (b) it has, and will continue to have, the right to transfer, or provide access to, the personal data to Twilio for processing in accordance with the terms of the Agreement and this Addendum. III. Twilio as a Processor - Processing Customer Content 5. Customer Instructions. Customer appoints Twilio as a processor to process Customer Content on Addendum, and as otherwise necessary to provide the Services to Customer (which may include investigating security incidents and preventing spam or fraudulent activity, and detecting and preventing network exploits and abuse); (b) as necessary to comply with applicable law; and (c) as otherwise agreed in writing by the pa Permitted Purposes 5.1 Lawfulness of Instructions.Customer will ensure that its instructions comply with Applicable Data Protection Law. Customer acknowledges that Twilio is not responsible for determining which laws are late any applicable law, regulation, or rule, including Applicable Data Protection Law. Twilio will inform Customer if it becomes regulation, or rule, including Applicable Data Protection Law. 5.2 Additional Instructions. Additional instructions outside the scope of the Agreement, an Order Form, or this Addendum will be agreed to between the parties in writing, including any additional fees that may be payable by Customer to Twilio for carrying out those instructions. 6. Confidentiality. 6.1 Responding to Third Party Requests. In the event that any request, correspondence, enquiry or complaint from a data subject, regulatory authority, or third party is made directly to Twilio in provide details of the same, to the extent legally permitted. Unless legally obligated to do so, Twilio will not respond to any such re confirm that the request relates to Customer. 6.2 Confidentiality Obligations of Twilio Personnel.Twilio will ensure that any person it authorizes to process the Customer Content has agreed to protect personal data in accordance with Twilio's confidentiality obligations under the Agreement. 7. Sub-processing. 7.1 Sub-processors. Customer agrees that Twilio may use sub-processors to fulfill its contractual obligations under the Agreement. Where Twilio authorizes any sub-processor as described in this Section 7, Twilio agrees to impose data protection terms on any sub-processor it appoints that require it to protect the Customer Content to the standard required by Applicable Data Protection Law, such as including the same data protection obligations referred to in Article 28(3) of the GDPR, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR. 7.2 General Consent for Onward Sub-processing. Customer provides a general consent for Twilio to engage onward sub-processors, conditional on the following requirements: (a) Any onward sub-processor must agree in writing to only process data in a country that the European equivalent to the Standard Contractual Clauses, or pursuant to a Binding Corporate Rules approval granted by competent European data protection authorities; and (b) Twilio will restrict the onward sub- necessary to provide the Services, and Twilio will prohibit the sub-processor from processing the personal data for any other purpose. 7.3 Current Sub-processors and Notification of New Sub-processors. If Twilio Ireland Limited or Twilio Japan G.K. is the Twilio party to the Agreement, then Customer consents to Twilio engaging Twilio Inc. as a sub-processor, which has its primary processing facilities in the United States of America. Customer consents to Twilio engaging additional third party sub-processors to process Customer Content within the Services for the Permitted Purposes provided that Twilio maintains an up-to-date list of its sub- processors at https://www.twilio.com/legal/sub-processors, which contains a mechanism for Customer to subscribe to notifications of new sub-processors. If Customer subscribes to such notifications, Twilio will provide details of any change in sub-processors as soon as reasonably practicable. With respect to changes in infrastructure providers, Twilio will endeavor to give notice sixty (60) days prior to any change, but in any event will give notice no less than thirty (30) days prior to any such change. With -processors, Twilio will endeavor to give notice thirty (30) days prior to any change, but will give notice no less than ten (10) days prior to any such change. 7.4 Objection Right for new Sub-processors. Customer may object to Twilio's appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is in writing and based on reasonable grounds relating to data protection. In such event, the parties agree to discuss commercial reasonable alternative solutions in good faith. If the parties cannot reach a resolution within ninety (90) days, Customer may suspend or terminate the affected service in accordance with the termination provisions of the Agreement. Such termination will be without prejudice to any fees incurred by Customer prior to suspension or termination. If no objection has been raised prior to Twilio replacing or appointing a new sub-processor, Twilio will deem Customer to have authorized the new sub-processor. 7.5 Sub-processor Liability. Twilio will remain liable for any breach of this Addendum that is caused by an act, error or omission of its sub-processors. 8. Data Subject Rights. 8.1 Twilio Services. As part of the Twilio Services, Twilio provides Customer with a number of self-service features, including the ability to delete, obtain a copy of, or restrict use of Customer Content, which may be used by Customer to assist in complying with its obligations under Applicable Data Protection Law with respect to responding to requests from data subjects via the Twilio Services at no additional cost. In dditional and timely assistance (at significant resources to that effort) to assist Customer in complying with its data protection obligations with respect to data subject rights under Applicable Data Protection Law. 8.2 SendGrid Services. Twilio will, taking into account the nature of the processing, provide reasonable assistance to Customer to the extent possible to enable Customer to respond to requests from a data subject seeking to exercise its rights under Applicable Data Protection Law with respect to Customer Content being processed via the SendGrid Services. 9. Impact Assessments and Consultations. Twilio will provide reasonable cooperation to Customer in cooperation will require Twilio to assign significant resources to that effort) or consultations with regulatory authorities that may be required in accordance with Applicable Data Protection Law. 10. Return or Deletion of Customer Content. Twilio will, in accordance with Section 2 of Schedule 1 (Details of Processing), delete or return to Customer any Customer Content stored in the Services. 10.1 Extension of Addendum. Upon termination of the Agreement, Twilio may retain Customer Content in storage for the time periods set forth in Schedule 1 (Details of Processing), provided that Twilio will ensure that Customer Content is processed only as necessary for the Permitted Purposes, and Customer Content remains protected in accordance with the terms of the Agreement, this Addendum, and Applicable Data Protection Law. 10.2 Retention Required by Law. Notwithstanding anything to the contrary in this Section 10, Twilio may retain Customer Content or any portion of it if required by applicable law, provided that it remains protected in accordance with the terms of the Agreement, this Addendum, and Applicable Data Protection Law. IV. Security and Audits 11. Security 11.1 Security Measures. Twilio has implemented and will maintain the technical and organizational measures set out in the Security Controls to protect personal data from a Security Incident. Additional information about the technical and organizational security measures involving (a) the Twilio Services are described at https://www.twilio.com/security and (b) the SendGrid Services are described at https://sendgrid.com/policies/security. 11.2 Determination of Security Requirements. Customer acknowledges that the Services include certain features and functionalities that Customer may elect to use that impact the security of the data and availability of multi-optional TLS encryption within the SendGrid Services. Customer is responsible for reviewing the information Twilio makes available regarding its data security, including its audit reports, and making an independent determination as to whether the Services including its obligations under Applicable Data Protection Law. Customer is further responsible for properly configuring the Services and using features and functionalities made available by Twilio to Services. 11.3 Security Incident Notification. Twilio will provide notification of a Security Incident in the following manner: a. Twilio will, to the extent permitted by applicable law, notify Customer without undue delay, but in no event later than seventy- Incident impacting Customer Data of which Twilio is a processor; b. Twilio will, to the extent permitted and required by applicable law, notify Customer without undue delay of any Security Incident involving Customer Data of which Twilio is a controller; and . Twilio will make reasonable efforts to identify and, to the extent such Security Incident is caused by a violation of the requirements of this Addendum by Twilio, remediate the cause of such Security Incident. Twilio will provide reasonable assistance to Customer in the event that Customer is required under Applicable Data Protection Law to notify a regulatory authority or any data subjects of a Security Incident. 12. Audits. with its obligations under Applicable Data Protection Law and this Addendum, insofar as Twilio is acting as a processor on behalf of Customer. with respect to its processing of Customer Content. Such audits are performed at least once annually at Audit Report standards for audit of the (a) Twilio Services can be found at https://www.twilio.com/security; and (b) SendGrid Services can be found at https://sendgrid.com/policies/security. reasonable confidentiality controls, Twilio will make available to Customer a c Audit Report. Customer agrees that any audit rights granted by Applicable Data Protection Law (including, where applicable, Article 28(3) of the GDPR or Clauses 5(f) and 12(2) of the Standard Contractual Clauses) will be satisfi Audit Report does not provide sufficient information or to the extent that Customer must respond to a regulatory authority audit, Customer agrees to a mutually agreed-upon audit plan with Twilio that: (a) ensures the use of an independent third party; (b) provides notice to Twilio in a timely fashion; (c) -current rates unless Customer is on Twili findings to only data relevant to Customer; and (g) obligates Customer, to the extent permitted by law, to keep confidential any information gathered that, by its nature, should be confidential. V. International Provisions primary processing facilities are in the United States of America. 14. Cross Border Data Transfer Mechanisms for Data Transfers. Services requires transfer of personal data out of the European Economic Area ("EEA"), Switzerland, or a jurisdiction set forth in Schedule 4, then Twilio will take such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. 14.1 Order of Precedence. In the event that the Services are covered by more than one transfer mechanism, the transfer of personal data will be subject to a single transfer mechanism in accordance (Twilio BCRs - Twilio Services); (b) the Standard Contractual Clauses as set forth in Section 14.3 (Standard Contractual Clauses); and, if neither (a) nor (b) is applicable, then (c) other applicable data transfer mechanisms permitted by Applicable Data Protection Law. 14.2 Twilio BCRs - Twilio Services. The parties agree that Twilio will process personal data in the Twilio at https://www.twilio.com/legal/binding-corporate-rules Twilio BCRs with respect to the Twilio Services, the Twilio BCRs will be the lawful transfer mechanism of Customer Account Data, Customer Content and Customer Usage Data from the EEA, Switzerland, or the United Kingdom to Twilio in the United States, or any other non-EEA Twilio entity subject to the binding corporate rules. For avoidance of doubt, the Twilio BCRs do not apply to the SendGrid Services. 14.3 Standard Contractual Clauses. This Addendum hereby incorporates by reference (a) the Standard Contractual clauses for data controller to data processor transfers approved by the European Commission in decision 2010/87/EU, provided that Appendices 1 and 2 of the Standard Contractual Clauses shall be deemed completed as set forth in Schedule 2 to this Addendum; and (b) the Standard Contractual Clauses for data controller to data controller transfers approved by the European Commission in decision 2004/915/EC, provided that Annex B of the Standard Contractual Clauses shall be deemed completed as set forth in Schedule 3 to this Addendum. The parties further agree that the Standard Contractual Clauses will apply to personal data that is transferred via the Services from the European Economic Area, the United Kingdom, and/or Switzerland to outside the European Economic Area, the United Kingdom, and Switzerland, either directly or via onward transfer, to any country or recipient: (i) not recognized by the European Commission (or, in the case of transfers from the UK or Switzerland, the competent authority for the UK or Switzerland) as providing an adequate level of protection for personal data and (ii) not covered by the Twilio BCRs. 15. Jurisdiction Specific Terms. To the extent Twilio processes personal data originating from and protected by Applicable Data Protection Law in one of the jurisdictions listed in Schedule 4, then the Jurisdiction Specific Terms apply in addition to the terms of this Addendum. In case of any conflict or ambiguity between the Jurisdiction Specific Terms and any other terms of this Addendum, the applicable Jurisdiction Specific Terms will take precedence. VI. Miscellaneous 16. Cooperation and Data Subject Rights. In the event that either party receives: (a) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable) or (b) any other correspondence, enquiry, or complaint received from a data subject, regulator or other third party, (collectively, "Correspondence") then, where such Correspondence relates to processing of Customer Account Data or Customer Usage Data conducted by the other party, it will promptly inform such other party and the parties agree to cooperate in good faith as necessary to respond to such Correspondence and fulfill their respective obligations under Applicable Data Protection Law. 17. Sensitive Data. Customer is responsible for ensuring that suitable safeguards are in place prior to transmitting or processing, or prior to Sensitive Data via the Services. 18. Notification Cooperation. Customer acknowledges that Twilio, as a controller, may be required by Applicable Data Protection Law to notify the regulatory authority of Security Incidents involving Customer Usage Data. If the regulatory authority requires Twilio to notify impacted data subjects with of this requirement. Customer will provide reasonable assistance to Twilio to notify the impacted data subjects. 19. GDPR Penalties. Notwithstanding anything to the contrary in this Addendum or in the Agreement cation obligations), neither party will be responsible for any GDPR fines issued or levied under Article 83 of the GDPR against the other party by a 20. Conflict. If there is any conflict between this Addendum and the Agreement and/or Privacy Policy, then the terms of this Addendum will control. Any claims brought in connection with this Addendum will be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement. 21. Failure to Perform. In the event that changes in law or regulation render performance of this Addendum impossible or commercially unreasonable, the Parties may renegotiate this Addendum in good faith. If renegotiation would not cure the impossibility, or the Parties cannot reach an agreement, 22. Updates. Twilio may update the terms of this Addendum from time to time; provided, however, Twilio will provide at least thirty (30) days prior written notice to Customer when an update is required as a result of (a) changes in Applicable Data Protection Law; (b) a merger, acquisition, or other similar transaction; or (c) the release of new products or services or material changes to any of the existing Services. The then-current terms of this Addendum are available at https://www.twilio.com/legal/data- protection-addendum. SCHEDULE 1 DETAILS OF PROCESSING 1. Nature and Purpose of the Processing. Twilio will process personal data as necessary to provide the personal data and does not share such e 1.1 Customer Content. Twilio will process Customer Content in accordance with Section 5 (Customer Instructions) of this Addendum. 1.2 Customer Account Data. Twilio will process Customer Account Data as a controller (a) in order to accounting and filing taxes; and (c) in order to detect, prevent, or investigate security incidents, fraud and other abuse and/or misuse of the Services. 1.3 Customer Usage Data. Twilio will process Customer Usage Data as a controller in order to carry out the necessary functions as a communications service provider, such as: (a) billing, audit, and compliance purposes; (b) to provide, optimize, and maintain the Services and platform and security; (c) to investigate fraud, spam, wrongful or unlawful use of the Services; and/or (d) as required by applicable law. 2. Duration of the Processing. 2.1 Customer Content. a. Twilio Services. Prior to the termination of the Agreement, Twilio will process stored Customer Content for the Permitted Purposes until Customer elects to delete such Customer Content via the Twilio Services. Prior to the termination of the Agreement, Customer agrees that it is solely responsible for deleting Customer Content via the Twilio Services. Upon termination of the Agreement, Twilio will (i) provide Customer thirty (30) days after the termination effective date to obtain a copy of any stored Customer Content via the Twilio Services; (ii) automatically delete any stored Customer Content thirty (30) days after the termination effective date; and (iii) automatically delete any stored Customer -up systems sixty (60) days after the termination effective date. Any Customer -up systems will be securely isolated and protected from any further processing, except as otherwise required by applicable law. return to Customer the Customer Content (including copies) stored in the SendGrid Services and (ii) automatically delete any stored Cust-up systems one (1) year after the termination effective date. 2.2 Customer Account Data. Twilio will process Customer Account Data as long as needed to provide the ess needs, or as required by law. Customer Account Data will be stored in accordance with the Privacy Policy. 2.3 Customer Usage Data. Upon termination of the Agreement, Twilio may retain, use, and disclose Customer Usage Data for the purposes set forth in Section 1.3 of this Schedule 1, subject to the confidentiality obligations set forth in the Agreement. Twilio will anonymize or delete Customer Usage Data when Twilio no longer requires it for the purposes set forth in Section 1.3 of this Schedule 1. 3. Categories of Data Subjects. ed from Twilio. 4. Type of Personal Data. Twilio processes personal data contained in Customer Account Data, Customer Content, and Customer Usage Data as defined in the Addendum. SCHEDULE 2 APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix 1. Data exporter The data exporter is the Customer and the user of the Services. Data importer The data importer is Twilio Inc, a provider of (a) business communications services that enable communications features and capabilities to be embedded into web, desktop and mobile software applications; and (b) cloud-based transactional and marketing email delivery, management and analytics services. Data subjects The personal data transferred concern the following categories of data subjects: -users. The data importer will receive any personal data in the form of Customer Content that the data exporter instructs it to process through its cloud communications products and services. The precise personal data that the data exporter will transfer to the data importer is necessarily determined and controlled solely by the data exporter. Categories of data The personal data transferred concern the following categories of data (please specify): Customer Content: As defined in Section 1 (Definitions) of this Addendum. Special categories of data (if appropriate) The personal data transferred concern the following special categories of data (please specify): Twilio does not intentionally collect or process any special categories of data in the provision of its products or services. However, special categories of data may from time to time be processed through the Services where the data exporter or its end users choose to include this type of data within the communications it transmits using the Services. As such, the data exporter is solely responsible for ensuring the legality of any special categories of data it or its end users choose to process using the Services. Processing operations The personal data transferred will be subject to the following basic processing activities (please specify): For the Twilio Services, the provision of programmable communication products and services, primarily offered in the form of application programming interfaces (APIs), on behalf of the data exporter, -switched telephone network (PSTN) or by way of other communications networks. For the SendGrid Services, the provision of products and services which allow the sending and delivering email communications on behalf of the data exporter to its recipients. Twilio will also provide the data exporter with analytic reports concerning the email communications it sends on the data exporter's behalf. APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES This Appendix 2 forms part of the Clauses and must be completed and signed by the parties. Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or documentation/legislation attached): See Security Controls. SCHEDULE 3 ANNEX B TO THE STANDARD CONTRACTUAL CLAUSES DESCRIPTION OF THE TRANSFER This Annex B forms part of the Standard Contractual Clauses and must be completed and signed by the parties. Data Subjects The personal data transferred concern the following categories of data subjects: Purposes of the Transfer(s) The transfer is made for the following purposes: The provision of cloud communication services. and For provision of a portion of the Twilio Services under which data exporter adds an additional factor for 2 Factor Authentication Services Categories of data The personal data transferred concern the following categories of data: 1.!Personal data transferred by data exporter to data importer to provide 2 Factor Authentication Services, namely data subjects' telephone numbers and email addresses and any other personal data provided by the data exporter and/or needed for authentication purposes. 2.!Customer Account Data: As defined in Section 1 (Definitions) of this Addendum. 3.!Customer Usage Data: As defined in Section 1 (Definitions) of this Addendum. Recipients The personal data transferred may only be disclosed to the following recipients or categories of recipients: !Employees, agents, affiliates, advisors and independent contractors of data importer with a reasonable business purpose for needing such personal data !Vendors of data importer that, in their performance of their obligations to data importer, must process such personal data acting on behalf of and according to instructions from data importer. !Any person (natural or legal) or organization to whom data importer may be required by applicable law or regulation to disclose personal data, including law enforcement authorities, central and local government. Sensitive data N/A Data protection registration of the data exporter ________________ SCHEDULE 4 JURISDICTION SPECIFIC TERMS 1.Australia: Australian Privacy Act (1988). Protection Law. Protection Law. 2. Brazil: o de Dados (LGPD). or damage to the data subjects. 3. California: (CCPA). Protection Law and, for clarity, includes any Personal Information contained within Customer Account Data, Customer Content, and Customer Usage Data. Law. Any data subject rights, as described in Section 8 (Data Subject Rights) of this Addendum, apply to Consumer rights. In regards to data subject requests, Twilio can only verify a request from Customer and Protection Law. 3.6 Twilio will process, retain, use, and disclose personal data only as necessary to provide the Services under the Agreement, which constitutes a business purpose. Twilio agrees not to (a) sell (as defined by ata for any commercial purpose (as defined by the CCPA) other than providing the Twilio understands its obligations under the Applicable Data Protection Law and will comply with them. 3.7 Twilio certifies that its sub-processors, as described in Section 7 (Sub-processing) of this Addendum, are Service Providers under Applicable Data Protection Law, with whom Twilio has entered into a written contract that includes terms substantially similar to this Addendum. Twilio conducts appropriate due diligence on its sub-processors. 3.8 Twilio will implement and maintain reasonable security procedures and practices appropriate to the nature of the personal data it processes as set forth in Section 11 (Security) of this Addendum. 4. Canada: Protection and Electronic Documents Act (PIPEDA). -processors, as described in Section 7 (Sub-processing) of this Addendum, are third parties under Applicable Data Protection Law, with whom Twilio has entered into a written contract that includes terms substantially similar to this Addendum. Twilio has conducted appropriate due diligence on its sub-processors. 4.3. Twilio will implement technical and organizational measures as set forth in Section 11 (Security) of this Addendum. 5. Israel: f Privacy Law (PPL). Protection Law. 5.4 Twilio will require that any personnel authorized to process Customer Content comply with the principle of data secrecy and have been duly instructed about Applicable Data Protection Law. Such personnel sign confidentiality agreements with Twilio in accordance with Section 6 (Confidentiality) of this Addendum. 5.5 Twilio must take sufficient steps to ensure the privacy of data subjects by implementing and maintaining the security measures as specified in Section 11 (Security) of this Addendum and complying with the terms of the Agreement. 5.6 Twilio must ensure that the personal data will not be transferred to a sub-processor unless such sub- processor has executed an agreement with Twilio pursuant to Section 7.1 (Sub-processors) of this Addendum. 6. Japan: 6.1 The definition of Information (APPI). Protection Law. Protection Law. As a Business Operator, Twilio is responsible for the handling of personal data in its possession. Business Operator with Protection Law. As a trustee, Twilio will ensure that the use of the entrusted personal data is securely controlled. 7. Mexico: Personal Data Held by Private Parties and its Regulations (FLPPIPPE). 7.2. When acting as a processor, Twilio will: (a) treat personal data in accordance Instructions) of this Addendum; (b) process personal data only to the extent necessary to provide the Services; (c) implement security measures in accordance with Applicable Data Protection Law and Section 11 (Security) of this Addendum; (d) keep confidentiality regarding the personal data processed in accordance with the Agreement; (e) delete all personal data upon termination of the Agreement in accordance with Section 10 (Return or Deletion of Customer Content) of this Addendum; and (f) only transfer personal data to sub-processors in accordance with Section 7 (Sub-processing) of this Addendum. 8. Singapore: Protection Act 2012 (PDPA). 8.2 Twilio will process personal data to a standard of protection in accordance with the PDPA by implementing adequate technical and organizational measures as set forth in Section 11 (Security) of this Addendum and complying with the terms of the Agreement. 9. United Kingdom: 9.1 References in this Addendum to GDPR will to that extent be deemed to be references to the corresponding laws of the United Kingdom (including the UK GDPR and Data Protection Act 2018) 9.2 The Standard Contractual Clauses will also apply to Customer in the United Kingdom as data exporter and to Twilio as data importer for transfers of personal data to countries that are not deemed to have an adequate level of data protection under the United Kingdom's Applicable Data Protection Law. Appendix E Security Overview for Twilio Services and SendGrid Services Effective: January 1, 2020 1. at https://www.twilio.com/legal/tos to which Customer has agreed and accepted or a signed Master Agreement this Security Overview for the Twilio Services and SendGrid Services, (Security Overview), references to will refer collectively to Twilio Inc., 375 Beale Street, Suite 300, San Francisco, CA 94105 and its Affiliates. The terms will refer to you, the Customer and its Affiliates. 2. Purpose. Twilio is committed to maintaining customer trust. The purpose of this Security Overview is to describe the security program for the Twilio Services and SendGrid Services (collectively the Services scribes the minimum security standards that Twilio maintains in order to protect Customer Data (as defined in the Agreement) from unauthorized use, access, documentation is available at https://www.twilio.com/docs/api/security. As security threats shift and evolve, Twilio continues to update its security program and strategy to help protect Customer Data. Twilio reserves the right to update this Security Overview from time to time; provided, however, any update will not materially reduce the overall protections set forth in this Security Overview. Any capitalized term not defined in this Security Overview will have the meaning given in the Agreement or the Data Protection Addendum. 3.Services Covered. This Security Overview describes the architecture, administrative, technical and physical controls as well as third party security audit certifications that are applicable to the Services. Beta Offerings and any services provided by telecommunication providers involved in routing and connecting Customer communications are not covered by this Security Overview. 4.Security Organization & Program. Twilio maintains a risk-based assessment security program. The security program is intended to be appropriate to the nature of Twilio Services and SendGrid Services, supports independent audits and assessments by System and includes programs covering: Policies and Procedures, Asset Management, Access Management, Cryptography, Physical Security, Operations Security, Communications Security, Business Continuity Security, People Security, Product Security, Cloud and Network Infrastructure Security, Security Compliance, Third-Party Security, Vulnerability Management, as well as Security Monitoring and and Security Officer meeting with executive management regularly to discuss issues and coordinate company-wide security initiatives. Information security policies and standards are reviewed and approved by management at least annually and are made available to all Twilio employees for their reference. 5. Confidentiality. Twilio has controls in place to maintain the confidentiality of Customer Data that Customer makes available to the Services, in accordance with the Agreement. All Twilio employees and Customer Data and contractually commit to these obligations. 6. People Security. 6.1 Employee Background Checks. Twilio carries out background checks on individuals joining Twilio in vious employment, and also carries out reference checks. Where local labor law or statutory regulations permit, and dependent on the role or position of the prospective employee, Twilio may also conduct criminal, credit, immigration, and security checks. 6.2 Employee Training. At least once a year, all Twilio employees must complete the Twilio security and Employees on a leave of absence may have addit dedicated security team also performs phishing awareness campaigns and communicates emerging threats to employees. Twilio has also established an anonymous hotline for employees to report any unethical behavior where anonymous reporting is legally permitted. 7. Third Party Vendor Management. 7.1 Vendor Assessment. Twilio may use third party vendors to provide Services. Twilio carries out a security risk-based assessment of prospective vendors before working with those vendors to validate tion of data being accessed (if any), controls necessary to protect data, and legal/regulatory requirements. Twilio ensures that Customer Data is returned and/or deleted at the end of a vendor relationship. For the avoidance of doubt, telecommunication providers are not considered subcontractors of Twilio. 7.2. Vendor Agreements. Twilio enters into written agreements with all of its Vendors which include confidentiality, privacy and security obligations that provide an appropriate level of protection for the personal data contained within the Customer Data that these Vendors may process 8. Security Certificates. 8.1 Twilio Certificates: Twilio has obtained the following security-related certifications for the Twilio Services only: !ISO/IEC 27001:2013 certification. ISO 27001 is an information security standard originally published in 2005 by the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC). In September 2013, ISO 27001:2013 was published, and it supersedes the original 2005 standard. ISO 27001 is a globally recognized, standards- information security management system (ISMS). Twilio has obtained the following security-related certifications for the Twilio Services and SendGrid Services: !- Type II. Twilio maintains SOC 2 - Type II certification for (a) Twilio Services described as two factor authentication service or otherwise named Authy principles and criteria (security and availability). SOC 2 audits for the Twilio Services and SendGrid Services are conducted once a year by an independent third-party auditor. The SOC 2 backup and recovery procedures, software development processes, and logical security controls. ! security standard administered by the PCI Security Standards Council. PCI DSS applies to all entities that store, process or transmit cardholder data and/or sensitive authentication data including merchants, processors, acquirers, issuers, and service providers. The PCI DSS is mandated by the card brands and administered by the Payment Card Industry Security Standards Council. For more information, or to request the PCI DSS Attestation of Compliance and Responsibility Summary, see https://www.pcisecuritystandards.org/pci_security/. Twilio maintains PCI DSS Level 1 compliance for its Programmable Voice service. Twilio maintains PCI DSS Level 4 Merchant compliance for its SendGrid Services. 8.2 AWS Certifications. In addition, the Services use and leverage AWS data centers. Twilio uses and leverages AWS data centers, with a reputation of being highly scalable, secure, and reliable. Information about AWS audit certifications are available at AWS Security website https://aws.amazon.com/security and AWS Compliance website https://aws.amazon.com/compliance. 9. Architecture and Data Segregation. a. Twilio Services. The cloud communication platform for the Twilio Services is hosted by Amazon Web Services AWS Services is located in the United States. Further information about security provided by AWS is available from the AWS security webpage available at https://aws.amazon.com/security/. In addition, the https://aws.amazon.com/whitepapers/overview-of- security-processes/- facing applications sit, is a logically isolated Virtual Private Cloud (VPC). b. SendGrid Services. For the SendGrid Services, Twilio leverages colocation data centers, provided by Zayo and Centurylink, and located in the United States. For both Twilio Services and SendGrid Services, all network access between production hosts is restricted, using firewalls to allow only authorized services to interact in the production network. Firewalls are in use to manage network segregation between different security zones in the production and corporate environments. Firewall rules are reviewed regularly. Twilio separates Customer Data using logical identifiers tagging all communications data with the associated Customer ID to clearly access only to and from these tags and enforce access controls to ensure the confidentiality and integrity requirements for each Customer are appropriately addressed. These controls are in place so one customer's communications cannot be accessed by another customer. 10. Physical Security. AWS data centers that host Twilio Services and the colocation data centers provided by Zayo and Centurylink that are used for the SendGrid Services are strictly controlled both at the perimeter and at building ingress points by professional security staff utilizing video surveillance, intrusion detection systems, and other electronic means. Authorized staff must pass two-factor authentication a minimum of two times to access data center floors. All visitors and contractors are required to present identification and are signed in and continually escorted by authorized staff. These facilities are designed to withstand adverse weather and other reasonably predictable natural conditions. Each data center has redundant electrical power systems that are available twenty-four (24) hours a day, seven (7) days a week. Uninterruptible power supplies and on-site generators are available to provide back-up power in the event of an electrical failure. More details about the physical security of AWS data centers used by Twilio for the Twilio Services, are available at https://aws.amazon.com/whitepapers/overview-of-security-processes/. In addition, Twilio headquarters and office spaces have a physical security program that manages visitors, building entrances, CCTVs (closed circuit television), and overall office security. All employees, contractors and visitors are required to wear identification badges. 11. Security by Design. The Twilio Security Development Lifecycle (TSDL) standard defines the process by which Twilio creates secure products and the activities that the product teams must perform at different stages of development (requirements, design, implementation, and deployment). Twilio security engineers perform numerous security activities for the Services including: !internal security reviews before products are launched; !periodic penetration tests performed by independent third-party contractors; and !conduct threat models for the Twilio Services including documenting any detection of attacks. Twilio has implemented a Bug Bounty Program, available at https://bugcrowd.com/twilio through which researchers may report design and implementation issues or possible vulnerabilities. 12. Access Controls. 12.1 Provisioning Access. To minimize the risk of data exposure, Twilio follows the principles of least privilege through a team-based-access-control model when provisioning system access. Twilio personnel are authorized to access Customer Data based on their job function, role and responsibilities, and such reviewed at least semi- termination of their employment. In order to access the production environment, an authorized user must have a unique username and password, multi- Virtual Private Network (VPN). Before an engineer is granted access to the production environment, access must be approved by management and the engineer is required to complete internal trainings for in the production environment. Twilio leverages automation to identify any deviation from internal technical standards that could indicate anomalous/unauthorized activity to raise an alert within minutes of a configuration change. 12.2 Password Controls. current policy for employee password management follows the NIST 800-63B guidance, and as such, our policy is to use longer passwords, with multi-factor authentication but not require special characters or frequent changes. For the SendGrid Services, password requirements include a 10 character minimum, with at least three of the following characteristics: upper case letter, lower case letter, number, special character. When a Customer logs into its Twilio account, Twilio hashes the credentials of the user before it is stored. A customer may also require its users to add another layer of security to their account by using two-factor authentication (2FA). 13. Change Management. Twilio has a formal change management process to manage changes to software, applications and system software that will be deployed within the production environment. Change requests are documented using a formal, auditable, system of record. Prior to a high-risk change being made, an assessment is carried out to consider the impact and risk of a requested change, evidence acknowledging applicable testing for the change, approval of deployment into production by appropriate approvers(s) and roll back procedures. A change is reviewed and tested before being deployed to production. 14. Encryption in Transit. SendGrid Services, Twilio utilizes opportunistic TLS t Customer opts to use TLS, such email is encrypted end-to- email service provider supports TLS. 15. Vulnerability Management. Twilio maintains controls and policies to mitigate the risk from security vulnerabilities in a measurable time frame that balances risk and the business/operational requirements. Twilio uses a third-party tool to conduct vulnerability scans regularly to assess d infrastructure and corporate systems. Critical software patches are evaluated, tested and applied proactively. For the Twilio Services, operating system patches are applied through the regeneration of a base virtual-machine image and deployed to all nodes in the Twilio cluster over a predefined schedule. For high-risk patches, Twilio will deploy directly to existing nodes through internally developed orchestration tools. 16. Penetration Testing. Twilio performs penetration tests and engages independent third-party entities to conduct application-level penetration tests. Results of penetration tests are prioritized, triaged and 17. Security Incident Management. Twilio maintains security incident management policies and procedures in accordance with NIST SP 800-61. Twilio Security Incident Response Team (T-SIRT), assesses the threat of all relevant vulnerabilities or security incidents and establishes remediation and mitigation actions for all events. Twilio retains security logs for 180 days. Access to these security logs is limited to T-SIRT. Twilio utilizes AWS platforms and third-party tools to detect, mitigate, and to help prevent Distributed Denial of Service attacks (DDoS) attacks. 18. Discovery, Investigation and Notification of a Security Incident. meaning given in the Data Protection Addendum which can be found online here https://www.twilio.com/legal/data-protection-addendum, or which is incorporated into the Agreement. Upon discovery or notification of any Security Incident, Twilio will: !promptly investigate such Security Incident; !to the extent that is permitted by applicable law, promptly notify Customer. Customer will receive notification via email to the owner of the Twilio account. Refer to the Agreement and the Data Protection Addendum to the Agreement for additional information on Customer notification and follow on steps. 19. Resilience and Service Continuity. Twilio infrastructure for both the Twilio Services and SendGrid Services uses a variety of tools and mechanism to achieve high availability and resiliency. For the Twilio -independent AWS availability zones in geographic regions physically separated from one another. For the Twilio Services, there are manual or automatic capabilities to re- to detect and route around issues experienced by hosts or even whole data centers in real time and employ orchestration tooling that has the ability to regenerate hosts, building them from the latest backup. Twilio leverages specialized tools that monitor server performance, data, and traffic load capacity within each availability zone and colocation data centers. If suboptimal server performance or overloaded capacity is detected on a server within an availability zone or colocation data center, then these specialized tools will increase the capacity or shift traffic to relieve any suboptimal server performance or capacity overload. Twilio will also be notified immediately and have the ability to take prompt action to correct the cause(s) behind these issues if the specialized tools are unable to do so. 20. Backups and Recovery. Twilio performs regular backups of Twilio account information, call records, call recordings and other critical data using Amazon cloud storage. Backup data are retained redundantly across availability zones and are encrypted in transit and at rest using 256-bit Advanced Encryption Standard (AES-256) server-side encryption. Appendix F Last Updated: February 15, 2021 1. Definitions: The following defined terms apply to this SLA. Capitalized terms not defined below have the meanings ascribed to them in the Twilio Terms of Service, Master Sales Agreement, or other similar written Actual Monthly Uptime Percentage-B+C)/A , where: A = Total Monthly Time (defined below); B = Unavailable Monthly Time (defined below); and C = Excluded Monthly Times (defined below). Monthly Uptime Percentage Threshold Service Credit Actual Monthly Uptime Percentage is less than the Monthly Uptime Percentage Threshold, and which is calculated by multiplying the Service Credit percentage listed in the table below by either (i) with respect to t Total Monthly Time month. Unavailable Monthly Time were unavailable for use. Monthly Uptime Applicable Services Service Credit Percentage Threshold 10% credit 99.95% equivalent During calendar months in which Customer has purchased 99.99% for Twilio 10% credit the Twilio Adminstration Edition or Twilio Enterprise Edition Services equivalent During calendar months in which Customer has purchased 99.99% for SendGrid 10% credit the Twilio SendGrid Enterprise Solution Services equivalent 2. Service Commitments: (a) If, during any month throughout the Term, the Actual Monthly Uptime Percentage falls below the Monthly Uptime Percentage Threshold, then Customer will be eligible to receive a Service Credit, for which Customer has purchased the Twilio SendGrid Enterprise Solution, the SendGrid Service fails to achieve a Successful Connection (as defined below) rate of at least, (A) with respect to emails originating from North America or South America, 15,000 requests per second, or (B) with respect to emails Successful Connection Rate Percentage Threshold, Customer shall be eligible to receive a Service Credit for such package, subject to Successful Connection shall have the right, exercisable no more than once per calendar month during the Term, to request a report indicat previous thirty (30) days. Notwithstanding any provision in this Agreement to the contrary, the service commitment set forth in this Section is conditioned upon meeting each of the following requirements: (i) Customer will utilize a sufficient number of concurrent connections to support the Successful North America or South America, six (6) gigabits per second in the aggregate, or (B) with respect to emails originating outside of North America or South America, four (4) gigabits per second in the aggregate; and (iii) Customer will honor Twilio's then-current time-to-live value for domain name system lookups of the Web API v3 Mail send address. 3. Credit Request and Payment Procedures: (a) Twilio Services: To receive a Service Credit for the Twilio Services, Customer must submit a request to Twilio through the Twilio customer service portal, available at https://www.twilio.com/help/contact, within thirty (30) days from the last day of the calendar month in which Customer claims Twilio failed to meet or exceed the Monthly Uptime Percentage Threshold. Availability of Twilio APIs for the Twilio Services is measured by a third party provider of performance and monito Monitoring Service submissions must inc Unavailable Monthly Time; and (iii) any documentation of the applicable outage. Each Service Credit will be applied to future amounts payable by Customer to Twilio for the Twilio Services. No refunds or cash value will be given. All SLA claims will be verified against the measurements of the Monitoring Service. (b) SendGrid Services: To receive a Service Credit for the SendGrid Services, Customer must submit a request to Twilio through the customer service portal, available at https://support.sendgrid.com, within thirty (30) days from the last day of the calendar month in which Customer claims Twilio failed to meet or exceed the Monthly Uptime Percentage Threshold or Successful Connection Rate. The ticket must Time calculated based on the status page available at http://status.sendgrid.com, or (B) failure to meet the Successful Connection Rate; and (iii) any documentation of the applicable outage. Each Service Credit will be applied to future amounts payable by Customer to Twilio for the SendGrid Services. No refunds or cash value will be given. 4. Excluded Monthly Times: Notwithstanding any provision in this Agreement to the contrary, no Unavailable Monthly Time will be including, without limitation, telecommunications provider-related problems or issues, Internet access or related problems occurring beyond the point in the network where Twilio maintains access and control over the Services; (ii) results from any actions or inactions of Customer or any third party (except equipment, software or other technology, Add-on services, or third party equipment, software or other maintenance for which Twilio will provide at least twenty-four (24) hours prior notice; (v) occurs during integrity or operation of the Services), regardless of the notice provided by Twilio; or (vi) results from any alpha, beta, developer preview, development test bed environments, descriptions of similar import or not otherwise generally available Twilio features or products; or (vii) periods of Unavailable Monthly Time that are less than five (5) minutes of continuous unavailability in duration (collectively, the Excluded Monthly Times 5. Entire SLA Liability: With respect to any failure of Twilio to meet the Monthly Uptime Percentage Threshold or Successful Appendix G Service & Country Specific Requirements Last Updated: April 29, 2021 Requirements and Country Specific Requirements below (collectively, "Requirements") to the extent applicable. If any of the following terms are used but not defined within a Requirement below, they will have the meanings set forth in the Twilio Acceptable Use Policy ("AUP"): "Customer", "Twilio", "End User", and "Services." Twilio may update or modify these Requirements from time to time. These Requirements are part of the AUP. Service Specific Requirements The Service Specific Requirements for a particular Service apply solely to the extent Customer uses the identified Service. !Services Using Phone Numbers !Short Codes !Messaging (SMS, MMS, Chat, & WhatsApp) !Programmable Voice !Twilio SendGrid Email !Twilio Flex !Twilio <Pay> !Electric Imp !Twilio Frontline !Twilio Marketplace Add-Ons Country Specific Requirements The Country Specific Requirements for a particular country apply solely to the extent Customer uses the Services in the identified country, regardless of whether Customer is located, domiciled, or doing business in such country. United States, Mexico, & Canada !Emergency Services in the United States & Canada !Voice Calls to North Amercian Phone Numbers !Illegal Robocalling Traceback Cooperation for Voice Calls to/from United States Phone Numbers United Kingdom (UK) !UK Emergency Calling Functionality Spain !Spain Geographic Phone Number Based Interpersonal Communications Services Countries in the European Union (EU) !European Electronic Communications Code Rights Waiver United Arab Emirates (UAE) !UAE Toll-Free & Geographic Phone Numbers China !Text Messaging Restrictions in the People's Republic of China Appendix H Twilio Messaging Policy This Messaging Policy applies to SMS, MMS, Chat, and WhatsApp messaging channels. We all expect that the messages we want to receive will reach us, unhindered by filtering or other blockers. An important step Twilio and our customers can take to make that expectation reality is to prevent and eliminate unwanted messages. Towards that end, we strive to work with our customers so that messages are sent with the consent of the message recipient, and that those messages comply with applicable laws, communications industry guidelines or standards, and measures of fairness and decency. This principle is central to Twilio's Acceptable Use Policy. Twilio Messaging - regardless of use case or phone number type (e.g., long code, short code, or toll-free) - as Application-to-Person (A2P) messaging. All A2P messages originating from Twilio are subject to this Messaging Policy, which covers rules and /or prohibitions regarding: !- !- !Sender Identification; !Messaging Usage; !Filtering Evasion; and !Enforcement. users or clients with the ability to send messages through Twilio, for example as an ISV (Independent Software Vendor), you are responsible for the messaging activity of these users. You must ensure that any messaging activity generated by your users is in compliance with Twilio policies. Consent / Opt-in What Is Proper Consent? Consent can't be bought, sold, or exchanged. For example, you can't obtain the consent of message recipients by purchasing a phone list from another party. Aside from two exceptions noted later in this section, you need to meet each of the consent messaging within your application or service, you must require your customers to adhere to these same requirements when dealing with their users and customers. Consent Requirements !Prior to sending the first message, you must obtain agreement from the message recipient to communicate with them - this is referred to as "consent", you must make clear to the individual they are agreeing to receive messages of the type you're going to send. You need to keep a record of the consent, such as a copy of the document or form that the message recipient signed, or a timestamp of when the customer completed a sign-up flow. !If you do not send an initial message to that individual within a reasonable period after receiving consent (or as set forth by local regulations or best practices), then you will need to reconfirm consent in the first message you send to that recipient. !The consent applies only to you, and to the specific use or campaign that the recipient has consented to. You can't treat it as blanket consent allowing you to send messages from other brands or companies you may have, or additional messages about other uses or campaigns. !Proof of opt-in consent should be retained as set forth by local regulation or best practices after the end user opts out of receiving messages. Alternative Consent Requirements: The Two Exceptions While consent is always required and the consent requirements noted above are generally the safest path, there are two scenarios where consent can be received differently. !Contact initiated by an individual If an individual sends a message to you, you are free to respond in an exchange with that individual. For example, if an individual texts your phone number asking for your hours of operation, you can respond you constitutes both consent and proof of consent. Remember that the consent is limited only to that particular conversation. Unless you obtain additional consent, don't send messages that are outside that conversation. !Informational content to an individual based a prior relationship You may send a message to an individual where you have a prior relationship, provided that individual provided their phone number to you, and has taken some action to trigger the potential communication, and has not expressed a preference to not receive messages from you. Actions can include a button press, alert setup, appointments, or order placements. Examples of acceptable messages in these scenarios include appointment reminders, receipts, one-time passwords, order/shipping/reservation confirmations, drivers coordinating pick up locations with riders, and repair persons confirming service call times. The message can't attempt to promote a product, convince someone to buy something, or advocate for a social cause. Periodic Messages and Ongoing Consent If you inte consent by offering them a clear reminder of how to unsubscribe from those messages using standard opt-out language (defined below). You must also respect the messag of frequency of contact. You also need to proactively ask individuals to reconfirm their consent as set forth by local regulations and best practices. Identifying Yourself as the Sender Every message you send must clearly identify you (the party that obtained the opt-in from the recipient) as the sender, except in follow-up messages of an ongoing conversation. Opt-out to -out keyword, such as STOPALL, UNSUBSCRIBE, CANCEL, END, and QUIT. Individuals must have the ability to revoke consent at any time by replying with a standard opt-out keyword. When an individual opts out, you may deliver one final message to confirm that the opt-out has been processed, but any subsequent messages are not allowed. An individual must once again provide consent before you can send any additional messages. Usage Limitations Content We Do Not Allow The key to ensuring that messaging remains a great channel for communication and innovation is preventing abusive use of messaging platforms. That means we never allow some types of content on our platform, even if our customers get consent from recipients for that content. Use Policy prohibits sending any content that is illegal, harmful, unwanted, inappropriate, objectionable, confirmed to be criminal misinformation, or otherwise poses a threat to the public, even if the content is permissible by law. Other prohibited uses include: !Anything that is illegal in the jurisdiction where the message recipient lives. Examples include, but are not limited to: o!Cannabis. Messages related to cannabis are not allowed in the United States as federal laws prohibit its sale, even though some states have legalized it. Similarly, messages related to CBD are not permissible in the United States, as certain states prohibit its sale. Twilio defines a cannabis message as any message which relates to the marketing or sale of a cannabis product, regardless of whether or not those messages explicitly contain cannabis terms, images, or links to cannabis websites. o!Prescription Medication. Offers for prescription medication that cannot legally be sold over-the-counter are prohibited in the United States. !Hate speech, harassment, exploitative, abusive, or any communications that originate from a hate group. !Fraudulent messages. !Malicious content, such as malware or viruses. !Any content that is designed to intentionally evade filters (see below). Country-Specific Rules All messages should comply with the rules applicable to the country in which the message recipient lives, which can be found in our Country-Specific Guidelines. Additionally, Twilio has Country Specific Requirements for select countries, which you should review prior to sending a message to recipients in or from those countries. Age and Geographic Gating If you are sending messages in any way related to alcohol, firearms, gambling, tobacco, or other adult content, then more restrictions apply. In addition to obtaining consent from every message recipient, you must ensure that no message recipient is younger than the legal age of consent based on where the recipient is located. You also must ensure that the message content complies with all applicable laws of the jurisdiction in which the message recipient is located or applicable communications industry guidelines or standards. You need to be able to provide proof that you have in place measures to ensure compliance with these restrictions. Messaging Policy Violation Detection and Prevention Evasion unwanted messaging detection and prevention mechanisms. Examples of prohibited practices include: !Content designed to evade detection. As noted above, we do not allow content which has been specifically designed to evade detection by unwanted messaging detection and prevention mechanisms. This includes intentionally misspelled words or non-standard opt-out phrases which have been specifically created with the intent to evade these mechanisms. !Snowshoeing. We do not permit snowshoeing, which is defined as spreading similar or identical messages across many phone numbers with the intent or effect of evading unwanted messaging detection and prevention mechanisms. How We Handle Violations When we identify a violation of these principles, where possible, we will work with customers in good faith to get them back into compliance with this policy. However, to protect the continued ability of all our customers to freely use messaging for legitimate purposes, we reserve the right to suspend or complying with the Messaging Policy, or who are not following the law in any applicable area or applicable communications industry guidelines or standards, in some instances with limited notice in the case of serious violations of this policy. Appendix I European Electronic Communications Code Rights Waiver Last Updated: February 23, 2021 If you are a microenterprise, small enterprise, or not for profit organisation and Twilio provides you with services within the European Economic Area or United Kingdom, you hereby waive the right (where you are entitled to do so) to: (a) have our contract with you made available to you in a durable medium; (b) have a contract summary provided to you; and (c) be notified when your usage of any services based on volume or time limits reaches the limits of your tariff plan. In addition, your order form with Twilio may set out a commitment period. In the event this period is longer than the maximum statutory period, you hereby waive the right to a shorter commitment period. Appendix J Supplier Purchase Order Terms and Conditions These terms and conditions ("Terms and Conditions") together with a "Purchase Order" form an "Agreement" between Twilio Inc. or the Twilio subsidiary identified in the Purchase Order purchasing the goods and services herein ("Twilio") and the Supplier identified in the Purchase Order ("Supplier"). Supplier's electronic acceptance, receipt, and acknowledgement of the Purchase Order constitutes Supplier's acceptance of these Terms and Conditions. The Purchase Order may be revoked at any time prior to acceptance by either party. Notwithstanding the foregoing, if the parties enter or have entered into a master services agreement, purchase agreement, or any other definitive agreement ("Master Agreement"), covering procurement of any services ("Services") or commodities and/or goods described in the Purchase Order (collectively, "Products"), the terms of such Master Agreement shall prevail over any terms herein. In the event of conflicts between the Purchase Order and the Terms and Conditions, the Purchase Order will govern. Capitalized terms not defined herein will have meanings provided in the Purchase Order. 1.!Delivery. Supplier will expediently perform its obligations under the Purchase Order. If Supplier delivers the Products after the date of delivery of Products ("Delivery Date"), Twilio may reject the Products. Supplier will preserve, pack, package, and handle the Products so as to protect the Products from loss or damage and in accordance with industry best practices. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous work, including, with respect to its accompanying information, packing, labeling, reporting, carriage, and disposal. Unless otherwise expressly agreed in writing or specified in a Purchase Order, delivery will be made to Twilio's Ship To location specified in the Purchase Order. 2.!Payment. Twilio will pay Supplier the price set forth in the Purchase Order in accordance with the payment terms specified therein upon the occurrence of the later of: (i) the Delivery Date; (ii) the date of Twilio's acceptance of all Products or any portion thereof; or (iii) Twilio's receipt of a properly prepared invoice. A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, Supplier's certification of conformance of the Services or Products to the requirements. In the event Twilio terminates the Services for convenience prior to completion of Services, Twilio shall pay Supplier the fees due under the Purchase Order. Unless otherwise specified therein, the prices within the Purchase Order are inclusive of all applicable tax. 3.!Ownership. To the extent the Services contain any Deliverables as defined herein, Supplier agrees that Twilio is the sole and exclusive owner of all software (including modifications and documentation), products, inventions, designs, specifications, documents, writings, and other materials created, conceived, prepared, made, discovered, or produced by Supplier for Twilio pursuant to the Purchase Order (the "Deliverables"). Supplier irrevocably assigns and transfers to Twilio all of its worldwide right and title to, and interest in, the Deliverables, including all associated copyright, patent, trade secret, trademark, and any other intellectual property or proprietary rights ("Intellectual Property Rights"). Additionally, Supplier grants to Twilio a non- exclusive, worldwide, royalty-free, irrevocable, perpetual, non-terminable, transferable, sublicensable license to all Intellectual Property Rights used in the creation of the Deliverables in order for Twilio to exercise its rights in the Deliverables as contemplated by the Purchase Order. Without limiting the foregoing, (i) the Deliverables are "works made for hire" to the extent Deliverables and assigns to Twilio all "moral rights" in the Deliverables. If for any reason such Deliverables are not works made for hire, Supplier hereby assigns all right, title, and interest in such materials to Twilio and agrees to assist Twilio, at Twilio's expense, to perfect such interest. To the extent Supplier is providing software under the Purchase Order other than as part of Deliverables, Supplier hereby grants to Twilio the right and license to use the software and any software documentation in accordance with the terms and conditions of the Purchase Order. The rights and licenses hereby granted are non-exclusive, royalty-free, worldwide, perpetual, 4.!Term and Termination. This Agreement is effective until all Products or Services under the Purchase Order have been accepted and paid for by Twilio. Twilio may terminate the Purchase Order at any time, for no reason or for any reason, upon ten (10) days written notice to Supplier. Either Twilio or Supplier may terminate the Purchase Order immediately upon written notice to the other party for any material breach. Twilio will have no further payment obligation in connection with the termination of this beyond the date of termination. 5.!Representations and Warranties. a.!Performance Warranties. Supplier warrants to Twilio and Twilio's customers for the longer of Supplier's normal warranty period or for one (1) year following the date of Twilio's acceptance of the Products that: (i) when received by Twilio from Supplier, the Products will be free from defects in design, material, workmanship, and manufacture; (ii) the Products will conform to the applicable documentation; (iii) the Products will be suitable for the purposes for which they are intended including purposes made known to Supplier; and (iv) all Products will be new and unused and not refurbished, unless otherwise agreed to in writing by the the parties. The foregoing warranties are in addition to all other warranties, whether express or implied, and will survive delivery, inspection, acceptance, or payment by Twilio. b.!General Warranties. Supplier represents and warrants that: (i) Supplier has all necessary rights of title to the Products and has transferred all such rights and title to Twilio upon Twilio's acceptance of the Products; (ii) the Products will be of professional quality and/or performed consistently with generally accepted industry standards; (iii) Supplier's performance under the Purchase Order will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Supplier is bound; (iv) Supplier will comply with all applicable laws and regulations, including any applicable import and export employment and anti-bribery laws and regulations; (v) software will be free from any virus, malicious device, worm, Trojan, time bomb, or other harmful or destructive code. c.!Representations. Supplier has conducted a criminal background check at its own expense on each employee, subcontractor, or agent performing Services or providing Products under this Agreement. Subject to applicable law, an employee, subcontractor, or agent of Supplier shall not be eligible to perform Services for Twilio if he or she has (i) been convicted of or was placed in a pre-trial diversion program for any crime involving dishonesty or breach of trust and/or (ii) convicted of any sex, weapons, or violent crime. Supplier shall abide by the applicable requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that Supplier, a subcontractor for purposes of this section is as defined in these regulations, and its subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. 6.!Confidentiality. Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose except as solely required to perform its obligations pursuant to this Agreement. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to any third partie required by law, or judicial, administrative, or other legal order to disclose any of the Disclosing written notice to Disclosing Party (if permitted by law) to allow Disclosing Party to obtain a protective order or otherwise protect its interests in the Confidential Information. In such cases, Receiving Party will provide full cooperation and assistance Communications Department. "Confidential Information" is means any information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether in written, electronic, digital, or other form, that a reasonable person would understand to be confidential given the circumstances and content of written or printed documents, proposals, designs, concepts, raw data, employee information, drawings, ideas, inventions, specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, know-how, marketing plans, strategies, pricing, policies, samples and physical items, financial information, software, hardware and all information of any kind relating to either party, their respective shareholders and/or affiliates. For the avoidance of doubt, the Deliverables constitute Confidential Information of Twilio. Supplier agrees not to, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party, other Information, either during or after Notwithstanding the foregoing, Confidential Information will not include any information which: (a) was or becomes publicly known through no action or inaction of Receiving Party; (b) is already in the possession of Receiving Party at the time of disclosure as shown by credible evidence; (c) is obtained by Receiving Party from a third party without a breach of such third arty evidence. 7.!Indemnification. Supplier will indemnify, defend, and hold Twilio and its officers, directors, agents, employees, successors, and customers harmless against any and all claims, liabilities, losses, damages, settlements, costs, and expenses (including attorneys' fees) made against or sustained by Twilio arising from: (i) any property damage, personal injury or death related to the Products; (ii) all loss, liability, and damages arising from or caused directly or indirectly by any act or omission of Supplier, Supplier's agents, employees, or subcontractors; (iii) any breach of this Agreement by Supplier or anyone acting on Supplier's behalf; (iv) royalty-claims, liens, or any other encumbrances on the Products or Services provided hereunder; (v) any claim that the Products infringe or misappropriate any third party Intellectual Property Rights. If Twilio's use of any of the Products is enjoined or in Twilio's reasonable opinion, is likely to be enjoined as a result of any such claim or allegation of Intellectual Property Infringement, Supplier agrees, at amounts paid by Twilio with respect to such Products; (b) modify the Products so that they become non-infringing but equivalent in functionality, quality, compatibility, and performance; or (c) procure for Twilio and its customers the right to continue using and distributing the Products. 8.!Insurance. Supplier will secure and maintain insurance against general liability and property r shall, at its own expense, maintain insurance throughout the term of the Agreement. Twilio may require suppliers to carry additional insurance limits and/or coverages. Supplier will provide Twilio documentation evidencing the required coverage within ten (10) business days of Twilio's request. The insurance carrier must be rated A-VII or better by A.M. Best Company. 9.!Limitation of Liability. TWILIO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, AND T ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO SUPPLIER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM. 10.!Miscellaneous. The relationship of Supplier and Twilio is that of independent contractor. Except as provided herein, no term or condition of the Purchase Order may be amended or deemed to be waived, except by a writing signed by both parties. No right or obligation under the Purchase Order (including the right to receive monies due) may be assigned, delegated or subcontracted, except to a subsidiary or affiliate, by either party without prior written consent of the other and any purported assignment without such consent will be void. This Agreement will be construed in accordance with the laws of the State of California without regard to its principles of conflict of laws. The exclusive jurisdiction and venue of any action relating to this Agreement will be the state and/or federal courts located in San Francisco County and each of the parties hereto submits itself to the exclusive jurisdiction of such courts and waives any argument relating to the convenience of forum. The rights and remedies herein provided are in addition to those available to either party at law or in equity. Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall survive. Appendix K Last Updated February 21st, 2020 In these Terms of use for (hereafter or ), or will refer collectively to Twilio Inc., 375 Beale Street, Suite 300, San Francisco, CA 94105 and its affiliates. The terms and will refer to you. If you are using the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to Twilio that you have the authority to bind that organization to these Terms (and, in which case, the terms and or will refer to that organization). The exception to this is if that organization has a separate written agreement with Twilio covering the use of the Services, in which case that agreement will govern such use. PLEASE REVIEW THESE TERMS CAREFULLY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND TWILIO. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT USE THE SERVICES. When we refer to the we mean an application programming interface for the Services (or feature of the Services) provided to you by us. When we refer to the in these Terms, we mean those services provided to you by Twilio in connection w SFDC When we refer to the we mean all of the Twilio API instruction manuals and guides, code samples, manuals, guides, on-line help files and technical documentation made publicly available by us for the Services, and as may be updated from time to time. There is a special subset of the at www.twilio.com/legal and consists of our Acceptable Use Policy, terms that are specific to certain at www.twilio.com/legal/security-overview. IMPORTANT NOTE: THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 13. IN ADDITION, DISPUTES RELATED TO TERMS OR RELATED TO YOUR USE OF THE SERVICES GENERALLY MUST BE RESOLVED BY A DISPUTE RESOLUTION PROCESS WHICH MAY LEAD TO BINDING ARBITRATION. For more details, go to Section 17. If you have any questions, you can reach Twilio at twilio.com/help/contact. Contact us if you are a U.S. federal government user or otherwise accessing or using the Services in a U.S. federal government capacity. 1. Changes to These Terms Twilio may update these Terms of Service from time to time by providing SFDC with prior written notice of material changes at least thirty (30) days in advance of the effective date. Except as otherwise specified by Twilio, updates will be effective upon the effective date indicated at the top of these Terms of Service. The updated version of these Terms will supersede all prior versions. Your continued access or use of the Services on or after the effective date of the changes to the Terms constitutes your acceptance of any updates. If you do not agree to any updates, you should stop using the Services. Twilio may not be able to provide SFDC with at least thirty (30) days prior written notice of updates to these Terms that result from changes in the law or requirements from telecommunications providers. 2. Your Use of Twilio Services You are solely responsible for all use (whether or not authorized) of the Services, including the quality and integrity of your Customer Data. You are also solely responsible for all acts and omissions of anyone precautions to prevent unauthorized access to or use of the Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you and each End User to connect to, access, and use the Services. 3. Access and Use of the Services 3.1 Provision of the Services. We will make the Services available to you in accordance with these Terms and the Documentation. The Services will comply with any applicable service le SLA which may be updated from time to time. Services will also comply with the Twilio Security Overview. We will provide the Services in accordance with laws its customers generally (i.e. without regard for your particular use of the Services), and subject to your use of the Services in accordance with these Terms and the Documentation. 3.2 You may use the Services, on a non-exclusive basis, solely to: (a) use and make the Services available to End Users in connection with the use of the Services in accordance with the Documentation and our Acceptable Use Policy; (b) use the Services solely in connection with and as necessary for your activities pursuant to these Terms; and (c) allow your affiliates to use the Services (subject to Section 8 (Affiliates)) pursuant to this Section 3. 4. Customer Data 4.1 Use of Customer Data Customer Data her information made available to us by or for you through the use of the Services under these Terms. Data Privacy. The terms of the Data Protection Addendum Data Protection Addendum Additionally, personal data may be disclosed in accordance with the Privacy Policy. You acknowledge that you have read our Privacy Policy and understand that it sets forth how we will collect, store, use and disclose your Customer Data including personal data. If you do not agree with our Privacy Policy, then you must stop using the Services immediately. You instruct us to use and disclose Customer Data as necessary to (a) provide the Services consistent with Twilio's then-current Data Protection Addendum, Privacy Policy, Section 10.3, and this Section 4, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Services, and (b) respond to any technical problems or your queries and ensure the proper working of the Services. You acknowledge that email and SMS are an insecure medium that is generally not encrypted in transit and security of information transmitted through the Internet can never be guaranteed and, accordingly, we are not responsible for any interception or interruption of any communications through the internet or for changes to or loss of Customer Data in connection with the Services. 5. Customer Responsibilities, Restrictions and Requirements 5.1 Your Responsibilities You will: (a) be solely responsible for all use (whether or not authorized) of the Services and Documentation including for the quality and integrity of Customer Data; (b) use Services only in accordance with this Agreement, the Acceptable Use Policy, Documentation, or other applicable terms relating to the use of the Services, and applicable laws; (c) be solely responsible for all acts, omissions and activities of your End Users, including their compliance with these Terms, Documentation, the Acceptable Use Policy, and any other terms of sales of the Services; (d) do your best to prevent unauthorized access to or use of the Services and notify SFDC and Twilio promptly of any such unauthorized access or use; (e) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (f) comply with the representations and warranties you make in Section 11 (Representations and Warranties) below. 5.2 Services Usage Restrictions With regard to the Services, you agree that: (a) you will not transfer, resell, lease, license or otherwise make available the Services to third parties or offer them on a standalone basis; (b) you will not attempt to use the Services to access or allow access to Emergency Services (meaning, an official government- sponsored emergency telephone number (such as 911 in North America or 112 in the European Union and other locations worldwide) which is used to dispatch professional emergency responders) unless the Service is expressly approved for Emergency Services, and you use those Services strictly in accordance with the Emergency Services Addendum; (c) you will ensure that the Services are used in accordance with all applicable law and third party rights, as well as these Terms and our Acceptable Use Policy, as amended from time to time; (d) you will ensure that we are entitled to use your Customer Data, as needed to provide the Services; (e) you will not use the Services in any manner that violates any applicable law; (f) you will not use the Services to create, train, or improve (directly or indirectly) a substantially similar product or service, including any other machine translation engine; (g) except as allowed by applicable law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with the Services. 5.3 Suspension of Services We may suspend the Services immediately upon notice for cause if: (a) you violate (or give us reason to believe you have violated) any provision of these Terms, our Acceptable Use Policy; (b) there is reason to believe the traffic created from your use of the Services or your use of the Services is fraudulent or negatively impacting the operating capability of the Services; (c) we determine, in our sole discretion, that providing the Services is prohibited by applicable law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding, or (e) there is any use of the Services by Customer or End Users that in integrity or availability of the Services. However, Twilio will use commercially reasonable efforts under the circumstances to (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) where practicable limit the suspension based on the circumstances leading to the suspension (e.g., to certain phone numbers, sub-accounts or other subset of traffic); and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved. 6. Changes to the Services The features and functions of the Services, including the Twilio API and our SLA, may change over time. It is your responsibility to ensure that calls or requests you make to the Services are compatible with our then-current Services. Although we try to avoid making changes to the Services that are not backwards compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementing those changes. 7. Beta Offerings From time to time, Twilio may make Beta Offerings available to you at no charge. You may choose to try such Beta Offerings or not in your sole discretion. Twilio may discontinue Beta Offerings at any time in our sole discretion and may decide not to make a Beta Offering generally available. For avoidance of ces that are identified as alpha, beta, non-GA, limited release, developer preview, or any such similarly designated services, products, features, and documentation offered by Twilio. 8. Affiliates Your affiliates mean any entity or person that controls you, is controlled by you, or under common than 50% ownership. Similarly, if we refer to our affiliates, we mean an entity or person that controls us, is controlled by us, or is under common control with us. Your affiliates must also agree to the Terms of Service to use or access the Services. If your affiliates use the Services under these Terms, then you and those affiliates will be jointly and severally responsible for the acts and omissions of your affiliates, including, but not limited to, their breach of these Terms. Any claim from any of your affiliates that use behalf. 9. Product Terms Refer to www.twilio.com/legal for terms that apply to certain features and functionality of our Services. 10. Ownership and Confidentiality 10.1 General. As between you and Twilio, we exclusively own and reserve all right, title and interest in and to the Services, Documentation, our Confidential Information and all anonymized or aggregated data resulting from use and operation of the Services (such as but not limited to volumes, frequencies, or bounce rates) and that do not identify a natural person as the source of the information, as well as any feedback, recommendations, correction requests, or suggestions from you or any End User about etween you and Twilio, you exclusively own and reserve all right, title and interest in and to Customer Data and your Confidential Information. 10.2 Suggestions and Contributions. We welcome your Contributions about the Services. But please know that by submitting Contributions you agree that: (a) we are not under any obligation of confidentiality with respect to your Contributions; (b) we may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way; (c) we own your Contributions; and (d) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Contributions. 10.3 Confidentiality 10.3.1 "Confidential Information"means any information or data, regardless of whether it is in tangible form, disclosed by either 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 fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party's rights; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party. 10.3.2 Use and Disclosure. The receiving party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the disclosing party in writing, limit access to Confidential Information of the disclosing party to thos contractors who need that access for purposes consistent with this Agreement and who are legally bound to keep such information confidential consistent with the terms of this Section 10. Twilio may disclose the terms of any Order Form or other purchase of Services to its affiliates, legal counsel and (Confidentiality). Notwithstanding the foregoing, (x) Twilio may disclose the terms of this Agreement and any applicable purchase transaction Twilio may use and disclose your Confidential Information as necessary to provide the Services, including as set forth in the Data Protection Addendum, and in each case of (x) and (y) under terms of confidentiality materially as protective as set forth herein. 10.3.3 Compelled Disclosure. Twilio may disclose your Confidential Information if so required pursuant to a regulation, law or court order. We will give you notice of the compelled disclosure (to the extent legally permitted). You will cover our reasonable legal fees for preparation of witnesses, deposition and testimony to the extent such compelled disclosure is in connection with a lawsuit or legal proceeding to which you are a party or to the extent fees are incurred in connection with reasonable assistance we provide to you in connection with your efforts to contest disclosure. 10.3.4 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 10 and that, in the event of an actual or threatened breach of the provisions of this Section 10, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. 11. Representations and Warranties; Warranty Disclaimer 11.1 Representations and Warranties 11.1.1 Recordings and Communications Monitoring. You represent and warrant that if you record or monitor telephone calls, SMS messages, or other communications using the Services, then you will comply with all applicable laws prior to doing so and will secure all required prior consents to record or monitor communications using the Services. We make no representations or warranties with respect to recording or monitoring of telephone calls, SMS messages, or other communications. You acknowledge that these representations, warranties, and obligations are essential to our ability to provide you with access to recording and monitoring features that are part of the Services, and you further agree to indemnify us and our affiliates in accordance with the terms of Section 12 (Mutual Indemnification) for claims arising out of or related to your acts or omissions in connection with providing notice and obtaining consents regarding such recording or monitoring of telephone calls, SMS messages, or other communications using the Services. 11.1.2 Customer Data. You represent and warrant that you have provided (and will continue to provide) adequate notices and have obtained (and will continue to obtain) the necessary permissions and consents to provide Customer Data to us for use and disclosure pursuant to Section 4 (Our Use of Customer Data). 11.1.3 We represent and warrant that the Services will perform materially in accordance with the applicable - perform the affected Services or refund to you the fees you actually paid for the affected Services. 11.1.4 Export Controls. The Services may be subject to applicable export control and economic sanctions laws of the U.S. and other jurisdictions. Twilio and You each agree to comply strictly with all domestic and international export laws and economic sanctions regulations, in the case of Twilio, in providing the Services, and, in the case of you, in receiving and using the Services respectively, and to the extent consistent with these Term, you will obtain any necessary license or other authorization to export, re- export, or transfer the Services. These laws include restrictions on destinations, End Users, and end use. Without limitation, you may not transfer the Services without U.S. government authorization to any Consolidated Sanctions List). Twilio represents that Twilio is not named on a U.S. government exclusion list. You represent that you or any End User using the Services is not named on a U.S. government exclusion list, and you further warrant that you will immediately discontinue use of the Services if you or any End User using the Services becomes placed on any such list. 11.2 Disclaimers TWILIO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TWILIO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW. TWILIO ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO THIRD ILITY WHATSOEVER FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA OFFERING. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TWILIO WILL NOT BE LIABLE AND WILL HAVE NO OBLIGATION TO INDEMNIFY CUSTOMER FOR SENSITIVE DATA THAT YOU OR ANY END USER SENDS TO TWILIO. has the meaning given in the AUP. 12. Mutual Indemnification 12.1 Indemnification by Twilio. We will defend you from and against all claims, demands, suits or proceedings made or brought against you by a third party alleging that the Services infringe or and will indemnify you from any damages, attorney fees, and costs finally awarded against you as a result of, or for amounts you pay to settle an Infringement Claim under a settlement for which Twilio has given its written approval. likely to become, the subject of any Infringement Claim, Twilio may at its option and expense: (a) procure for you the right to continue using the Services as set forth herein; (b) modify the Services to make them non- infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms. This Section 12 states your exclusive remedy for any Infringement Claim by a third party. 12.3 Twilio will have no liability or obligation with respect to any Infringement Claim and a court award of damages (a) arising out of your use of the Services in breach of these Terms, (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing, or (c) arising from Services for which there is no charge. 12.4 Indemnification by You. You will defend Twilio, its officers, directors, employees, and affiliates () from and against any claim, demand, suit or proceeding made or brought against a Twilio Indemnified Party by a third party alleging or arising out of (a) your or any of your End lities, Restrictions and Requirements), or breach of your representations or warranties under Section 11 of fees, and costs finally awarded against Twilio Indemnified Parties as a result of, or for amounts paid by Twilio Indemnified Parties to settle a Customer Indemnifiable Claim under a settlement for which you have given your written approval. 12.5 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party () will promptly notify the indemnifying party ( ) of any Infringement Claim or Customer Indemnifiable Claim, as applicable (collectively referred Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party's consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection wi participate in the defense of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 12 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified 13. Limitation of Liability; Emergency Services 13.1 INDIRECT CONSEQUENTIAL AND RELATED DAMAGES. EXCEPT FOR DAMAGES ARISING FROM BREACH OF YOUR OBLIGATIONS UNDER SECTION 5 (CUSTOMER RESPONSIBILITIES, RESTRICTIONS AND REQUIREMENTS), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY 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 HE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 13.2 LIMITATION OF LIABILITY. EXCEPT FOR DAMAGES ARISING FROM BREACH OF YOUR OBLIGATIONS UNDER SECTION 5 (CUSTOMER RESPONSIBILITIES, RESTRICTIONS AND REQUIREMENTS) AND EXCEPT FOR AMOUN (MUTUAL INDEMNIFICATION) OF THESE TERMS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT 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. 13.3 EMERGENCY SERVICES DISCLAIMER. NEITHER TWILIO NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD TWILIO HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES, AS DEFINED IN SECTION 2(b), EMERGENCY SERVICES. UNLESS THE TWILO SERVICE IS EXPRESSLY APPROVED FOR THIS PURPOSE AND YOU AND TWILIO HAVE ENTERED AN EMERGENCY SERVICES ADDENDUM <APPROVED PRODUCTS AND ADDENDA> IN CONNECTION WITH YOUR USE OF THE APPROVED PRODUCT. 13.4 THE PROVISIONS OF THIS SECTION 13 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. Note that these Terms apply solely to the Services covered hereunder, and do not cover the SFDC services. Twilio's liability under these Terms applies only to the Services covered hereunder and does not apply to the SFDC services. You must contact SFDC and not Twilio if you have any claims or concerns regarding the SFDC services. 14. Term; Termination 14.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by you (through your use of the Services) and continue until terminated in accordance with the agreement between you and SFDC or Section 14.2 (Termination) below (). 14.2 Termination. Either party may terminate these Terms and close your customer account(s) for any reason upon thirty (30) days written notice to SFDC. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, then these Terms will not terminate until such Order Form(s) have expired or been terminated. Twilio, at its sole discretion, may terminate these Terms in the event you commit any material breach of these Terms and fail to remedy that breach within five (5) days after Twilio provides written notice of that breach to SFDC. You may also terminate these Terms in the event we commit a material breach of these Terms and fail to remedy that breach within five (5) days after your providing written notice of that breach to SFDC. 15. Survival Upon termination of these Terms, the terms of this Section 15 and the terms of the following Sections will survive (i.e. still apply): Section 4 (Customer Data), Section 10 (Ownership and Confidentiality), Section 12 (Mutual Indemnification), Section 13 (Limitation of Liability; Emergency Services), Section 16 (General), and Section 17 (Agreement to Arbitrate). 16. General 16.1 Compliance with Laws. You will comply with the applicable law relating to your respective activities Documentation. 16.2 No Waiver, Order of Precedence. Our failure to enforce at any time any provision of these Terms, our Acceptable Use Policy, or any other of your obligations does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, our Acceptable Use Policy, or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by you and us to be legally binding. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (except as otherwise expressly set forth in an applicable Order Form): (1) the AUP, (2) product-specific terms, (3) the Terms of Service and (4) the Documentation. 16.3 Assignment. You will not assign or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be void. Twilio may assign these Terms, in whole or in part, without consent. Subject to this Section 16.3, these Terms will be binding on both you and Twilio and each of our successors and assigns. 16.4 Relationship. You and Twilio are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and Twilio will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. You and Twilio will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither you nor Twilio has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so. 16.5 Severability. Except as described in Section 17 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect. 16.6 Notices. Any notice required or permitted to be given hereunder will be given in writing to the party at the address specified in this Agreement by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email. Notices to Twilio shall be copied to legalnotices@twilio.com, Attn: General Counsel. 16.7 Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms 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, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause. 16.8 Government Terms. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with these Terms. If you (or any of your End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Services were developed fully at private expense. 16.9 Governing Law and Venue. The enforceability and interpretation of Section 17 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 17, these Terms will be governed by and interpreted according to the laws of the State of California without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 17 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the Services shall be instituted in either the state or federal courts of San Francisco, California, and we each consent to the personal jurisdiction of these courts. 16.10 Entire Agreement. Except as provided in these Terms and any exhibits or addenda or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Twilio, its agents or employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms. Any purchase order document or similar document provided by you shall be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon shall be void and have no effect with regard to these Terms between you and Twilio and be non-binding against Twilio even if signed by Twilio after the date you accept these Terms. 17. Agreement to Arbitrate Before bringing a formal legal case, please first try contacting our Customer Support. Most disputes can be resolved that way. 17.1 We Both Agree to Arbitrate. If a dispute cannot be resolved through our Customer Support Team, agree to resolve any dispute relating to these Terms or in relation to the Services by binding arbitration in San Francisco, California. This applies to all claims under any legal theory, unless the claim fits in one of the exceptions below in Section 17.2 (Exceptions to Agreement to Arbitrate). It also applies even after you have stopped using the Services. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too. Pursuant to this Section 17 (Agreement to Arbitrate), you understand that you and your affiliates and Twilio and its affiliates are giving up the right to have a judge and/or jury resolve any controversy or claim arising out of or relating to these Terms or the Services. 17.2 Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and Twilio and its affiliates on the other hand, agree that we will go to court to resolve disputes relating to: domain names, trade secrets, copyrights or patents); or (b) Your violation of our Acceptable Use Policy. Also, any of us can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing. 17.3 Details of Arbitration Procedure. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either their website or you can call them at 1-800-778-7879. The arbitration will be governed by the then- "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this Section 17conflicts with the Rules, the language of this Section 17 applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 17 does not alter in any way the statute of limitations that would apply to evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction. 17.4 Class Action Waiver. Both you and your affiliates, on one hand, and Twilio and its affiliates on the other hand, agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Twilio and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated claims into a single case, and cannot preside over any consolidated, class or representative proceeding only impact the person or entity that brought the claim, not other Twilio customers, and cannot be used to decide other disputes with other customers. If a court decides that this Section 17.4 (Class Action Waiver) is not enforceable or valid, then the entire Section 17 (Agreement to Arbitrate) will be null and void (i.e., go away). But, the rest of the Terms will still apply. 18. Additional Terms 18.1 For customers using Twilio to process personal data from the European Economic Area (EEA), Switzerland, or the United Kingdom: EU Data Protection Addendum. If Twilio will be processing personal data from the EEA, Switzerland, or the United Kingdom on your behalf, the Data Protection Addendum incorporated by reference into these Terms of Service will apply. here. 18.3 For Customers who reside in European Economic Area (EEA), Switzerland, or the United Kingdom: the following additional terms shall apply: 18.3.1 In relation to the limitation of liability: Nothing in this Agreement shall exclude or limit the liability of either party for (i) gross negligence or intentional misconduct of such party, (ii) death or personal injury caused by that party's negligence or (iii) fraud or fraudulent misrepresentation or (iv) any other liability to the extent that the same may not be excluded or limited as a matter of applicable law. 18.3.2 In relation to updating these Terms: Twilio may amend or modify these Terms from time to time, in which case the amended or modified version of these Terms will supersede all prior versions. Twilio will notify SFDC not less than thirty (30) days prior to the effective date of any such amendment or modification about the intended amendments or modifications. If you do not object to the amendment or modification within thirty (30) days from the aforementioned notice, such non-objection may be relied upon by Twilio as your consent to any such amendment or modification. Twilio will inform you about your right to object and the consequences of non-objection with the aforementioned notice. Please note, Twilio may not be able to provide at least thirty (30) days prior written notice of updates to these Terms of Service that result from changes in the law or requirements from telecommunications providers. 18.4 For Customers who reside in Germany the following additional terms shall apply: 18.4.1 In relation to Warranties: (aa) Twilio warrants that the Services will operate in accordance with the Documentation and will materially comply with any specifications contained therein. Both parties agree that to the extent the Customer is entitled to any statutory warranty rights, the applicable statutory warranty period is hereby reduced to twelve (12) months (bb) Any and all further warranties are excluded. \[END\] Appendix L Flex Zendesk Terms Amendment to Twilio Terms of Service Applicable to Subscribers of the Flex App in the Zendesk Marketplace This amendment to Twilio's Terms of Services (the collectively, as amended, the applies to Subscribers. as used herein, are Zendesk Customers who are users of the Twilio Services and that are accessing or using or wish to access or use the Twilio Services through the Twilio Flex Application available on the Zendesk Marketplace available at (the ). By using the Flex App, you agree to be bound by the App Terms. Any other use of the Twilio Services shall continue to be subject to the ToS. Any capitalized term that is not defined herein shall have the meaning set forth in the ToS. A. IP Rights and Licenses Twilio grants Subscriber a limited, non-exclusive, non-transferable license to use the Twilio Services use of the Zendesk Services. Subscriber hereby assigns to Twilio all right, title and interest (including intellectual property rights) in and to any new feature improvement, suggestion, enhancement request, recommendation, correction, idea or other feedback that Subscriber may provide to Twilio relating to the Flex App and Twilio Services all be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever without compensation to Subscriber. B. Data Privacy and Acknowledgment of Use be dges and agrees that by using the Flex App and enabling any of the Features of the Flex App, Subscriber would be transferring data collected and processed by Twilio to Zendesk for use with the Zendesk Service. Any such data transferred to Zendesk would be governed https://www.zendesk.com/company/customers- partners/privacy-policy/. Furthermore, Subscriber understands and agrees that appropriately handle and delete any data that is copied from Twilio over to the Zendesk Services through the Flex App. This includes both data with personally identifiable information and data without personally identifiable information. C. Payment Terms Subscriber acknowledges and agrees that the payment terms set forth in the App Terms shall govern avoidance of doubt, the App Terms shall govern and control in the event of a conflict between the App Terms and any Zendesk payment terms for any payment obligation Flex App. D. Limitation of Liability LIABILITY TO SUBSCRIBER OR ANY THIRD PARTY ARISING OUT OF THESE APP TERMS OR OTHERWISE IN ONE HUNDRED DOLLARS ($100.00) OR THE AMOUNTS PAID BY SUBSCRIBER TO TWILIO FOR USE OF THE FLEX APP DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE APP TERMS BETWEEN THE PARTIES AND TWILIO HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE SUBSCRIBER THE RIGHTS TO ACCESS AND USE THE FLEX APP PROVIDED FOR IN THESE APP TERMS. E. Availability of the Flex App Subscriber understands that use of the Flex App is subject to Zendesk permitting the Flex App to be available through the decide to no longer support the Flex App, potentially with little or no notice to Twilio or Subscriber. Subscriber understands this risk and agrees that Twilio shall bear no liab Flex App is interrupted, temporarily or permanently, if Twilio is unable to provide it through the Zendesk Marketplace and Zendesk Services on commercially reasonable terms or for any other reason. F. Required Zendesk Marketplace Terms (i) For the avoidance of doubt, Twilio is the licensor of the Flex App and Zendesk is not a Party to the App Terms set forth in this Amendment and the TOS. (ii) Except as otherwise limited by the App Terms imposed or required by the Twilio, Twilio grants Subscriber a perpetual, worldwide, non-exclusive, non-transferable and non-sublicensable license to access, deploy, use and integrate for a Zendesk Services. (iii) Any information that Twilio collects, stores and processes from Subscriber or the systems Subscriber uses to access or deploy the Flex Application, including service, will be subject to the App Terms, Twilio Privacy Policy, and any other terms that the Twilio expressly set forth under the App Terms. (iv) Subscriber may not modify, reverse engineer, decompile or disassemble the Flex App in whole or in part, or create any derivative works from or sublicense any rights in the Flex App, unless otherwise expressly authorized in writing by Twilio. (v) Each of Subscriber, Zendesk and Twilio shall maintain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectua Subscriber to use the Flex App under these App Terms do not convey any additional rights in the Flex App or Zendesk Services, or in any IP Rights associated therewith. Subject only to limited rights to access and use the Flex App as expressly stated herein, all rights, title and interest in and to the Flex App and all hardware, software and other components of or used to provide the Flex App, including all related IP Rights, will remain with and belong exclusively to Twilio. Twilio shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Flex App or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from Subscriber. G. Modification; Conflict Unless amended herein, the terms of the ToS shall remain in full force and effect. No modification to the App Terms, nor any waiver of any rights, will be effective unless consented to in a writing signed by both Parties. In the event there is a conflict between the App Terms and the ToS, the App Terms shall prevail. Appendix M Partner Program Policies Last Updated February 8th, 2021 SUMMARY: Twilio Build is a partner program for cloud innovators and change agents, with a mission to transform how businesses connect their customers in the modern world. Twilio Build empowers our partners in that mission through tailored resources, training, and tools. Through this program, Twilio shares expertise around specific business functions, product areas, and industries so our partners can best serve customers and differentiate their practices. These policies describe the requirements for participating in the Twilio Build program, including access Program Policies associated benefits for participating in outlined below. Twilio may revise these Program Policies from time to time. If we do, the revised terms will supersede prior versions. Unless Twilio says otherwise, revisions will be effective upon the effective date indicated above. 1. PROGRAM OVERVIEW you must complete the Program Application located online at Become a Twilio Partner. As part of this PTOS https://showcase.twilio.com/s/partner-tos. Once your application to become a Partner has been approved by Twilio, your participation in Twilio Build will be subject to the applicable requirements outlined in the Technology Partner Program Guide and Consulting Partner Program Guide Program Requirements. 1.2. Onboarding. Once you are approved as a Twilio Partner, you will receive a confirmation email from Twilio containing log-in credentials to Build Community and Twilio Showcase. 1.3. Benefits. In order to receive the program benefits of Twilio Build, you must remain in good standing with the applicable Program Requirements. Twilio has the right to audit your progress and your fulfillment of the Program Requirements. 2. PUBLICITY AND MARKETING 2.1. Opt- periodically send you information about Twilio, Twilio Build, or other material that Twilio believes may be of interest to you as a Partner. You give us permission to collect, store, use, disclose and process any information that you provide to us in connection with the Program, including information from your use of the Twilio site or any third party websites and software. Twilio will use your personal information according to the Twilio privacy policies which are available on the Twilio Legal Page at https://www.twilio.com/legal/tos If you would like to unsubscribe from these updates and marketing, please let Twilio know by responding to the confirmation email we send you when you join the Partner Program. Going forward, you can always unsubscribe at any time by contacting our support team. prior written approval on any press releases or other public statements regarding your participation as a Partner in Twilio Build. 2.3 Identifying Yourself as a Twilio Build Partner. If your participation in the Program meets the qualifications described in the Program Policies (each qualified partner, a Logo Partner Twilio Build Partner Logo Program TiersPartner Badge As a Logo Partner, you may use and display the Partner Badge that corresponds with the Program Tier that Twilio has designated for you. Specifically, you will have a non-exclusive, worldwide, royalty-free, revocable license to display the most recent version of the Twilio Partner Program Logo and/or Partner Badge on your websites and your offline materials (e.g., in any printed material, mailing, or other document) to identify your participation in the Program. Any additional uses of the Twilio Partner It is important that you may not modify your Twilio Partner Program Logo or Partner Badge in any way, and that you may not transfer, assign or sublicense your Twilio Partner Program Logo or Partner Badge to any other person or entity. When using the Twilio Partner Program Logo or Partner Badge, you must https://www.twilio.com/legal/trademark, as those guidelines are updated from time to time. Twilio may revoke your license to use your Twilio Partner Program Logo or Partner Badge at any time by giving you written notice. Twilio reserves all rights in the Twilio Partner Program Logo and Partner Badges and related intellectual property rights. Except as expressly described in this Section, Twilio does not transfer or license any additional rights to the Twilio Partner Program Logo and the Partner Badge, or related intellectual property rights. Further information about Partner Badges and Program Tiers is available in the Technology Program Guide and the Consulting Program Guide. 3. PROGRAM CONTENT AND INFORMATION 3.1. Program Content. Twilio may provide to you as a Program benefit text, images, web content, audio, video, or other content (excluding software) through a variety of means including through the Build Community and third-Program Content 3.2. Ownership and Usage. Twilio exclusively owns and reserves all right, title and interest in the Services, Documentation, Twilio's Confidential Information, and any Service Data that Twilio gathers while providing Services (as these terms are defined in the PTOS). Twilio reserves all rights not expressly granted to you. In turn, you will exclusively own and reserve all right, title and interest in your own Partner Solutions, your own Confidential Information, and your End Customer Data (as those terms are defined in the PTOS). 3.3. Restrictions. You agree that you will not use the Program Content in any manner or for any purpose other than as expressly permitted by these Program Policies. You may not and may not attempt to: (a) use, reproduce, sell, sublicense, distribute or otherwise transfer any Program Content to any third party; or (b) modify, alter or otherwise create derivative works of any Program Content. During and after your term as a Partner, you will not assert, nor will you authorize, assist, or encourage any third party to assert, any copyright infringement claim or other intellectual property infringement claim regarding the Program Content you have used. 3.4. Feedback. As described in the PTOS, Twilio may freely use the recommendations, suggestions, improvement or correction requests, comments, or other feedback that you provide relating to the Feedback incorporate Feedback into the Twilio Services or use it for any other purpose. Appendix N Partner Terms of Service (PTOS) Last Updated February 8th, 2021 PTOS ), or will refer collectively to Twilio Inc., 375 Beale Street, Suite 300, San Partner will refer to you. Partner Program subject to these Partner Terms. When we refer to Partner Services, this includes both our Services and Community To enroll in the Twilio Partner Program either on behalf of yourself or your organization, Partner must review and then accept these Partner Terms by checking the box indicating acceptance. If you are enrolling in the Partner Program on behalf of an organization, then you are agreeing to these Partner Terms for that organization and promising to Twilio that Partner has the authority to bind that organization). PLEASE REVIEW THESE PARTNER TERMS CAREFULLY. ONCE ACCEPTED, THESE PARTNER TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND TWILIO. IF YOU DO NOT AGREE TO BE BOUND BY THESE PARTNER TERMS, YOU SHOULD NOT CHECK THE ACCEPTANCE BOX. Acceptable Use Policy ng to the use of the Services available at https://www.twilio.com/legal/aup. Affiliate control with, the party ownership of more than fifty percent (50%) of the voting interests of the subject entity. Beta Offerings able, limited release, developer preview, or any similar Services offered by Twilio. means any software application or service that an End Customer makes available through, or creates, using developer tools provided by Twilio or that interfaces with the Services.any software application or service that an End Customer makes available to End Users that interfaces with the Services. means the then-guides and policies, for the Services available at https://www.twilio.com/docs. EndCustomer or referral by a Partner or (ii) indirectly via a Partner Solution. End Customer Data End UserEnd User anyone who has access to or otherwise accesses any Customer Application. Malicious Code example, viruses, worms, time bombs and Trojan horses. Order Form Affiliates) that specifies mutually agreed upon rates for certain Services and other commercial terms, including any applicable minimum spend commitments. Partner Services services that Partner receives as part of the Partner Program policies set forth at https://showcase.twilio.com/s/program-policies. Partner Data acy Policy-current privacy policy for the Services available at https://www.twilio.com/legal/privacy. Services Form, or provided by Twilio to Partner on a trial basis or otherwise free of charge. Services may include products and services that provide both (a) the platform services, including access to any application Twilio API here applicable, connectivity services, that link the other program offerings and services from time to time under additional terms, subject to the Partner meeting the application qualification criteria. Service Data Users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. "Short Code and MMS messages. Support Terms vailable at https://www.twilio.com/support-plans. Twilio Acceptable Use PolicyAUP Services available at https://www.twilio.com/legal/aup. TwilioSecurity Overview at https://www.twilio.com/legal/security-overview. Twilio SLA https://www.twilio.com/legal/service-level- agreement. Twilio Terms of Service ilio Terms of Service available at http://www.twilio.com/legal/tos, as may be updated from time to time. 1. Changes to The Partner Terms Twilio may update these Partner Terms from time to time upon reasonable notice, which may be -mail or by posting an updated version of these Partner Terms at https://www.twilio.com/legal/. The updated version of these Partner Terms will supersede all prior versions, and will become effective on the date given in those updated Partner Terms. Following such notice, your continued use of the Services and participation in the Partner Program constitutes Partner's acceptance of such updates. If you do not agree to such updates, you should stop your use of the Services and participation in the Partner Program. Exceptions: Twilio may not be able to provide prior written notice of updates to these Partner Terms that result from changes in the law or requirements from telecommunications providers. Service & Country Specific Requirements. Additional requirements for specific Services, including any country specific requirements, are set forth at https://www.twilio.com/legal/service-country-specific- terms Services. 2. Enrollment in the Partner Program 2.1 Application and Enrollment. You may apply to join the Partner Program by completing the application at https://www.twilio.com/partner-solutions/become-a-partner qualifications and requirements in order to be approved, and you must comply with both these Partner Terms and the Partner Program Policies at https://www.twilio.com/legal/tos on an ongoing basis. Twilio offers different partner classifications. Twilio may require Partners to enter additional terms and conditions that apply to different partner classifications. 2.2 Publicity. Twillio will notify you in writing if you are approved to participate in the Partner Program. Until you receive this notification, you may not represent yourself as a Twilio Partner. In addition, once you are approved, you may not issue any press releases or other public statements regarding your status as a Partner or your participation in the Build Community without Twilio under these Partner Terms. Each of your Affiliates that wants to participate in the Partner Program must accept these Terms individually and create its own account. 3.Partner Rights, Responsibilities, and Restrictions 3.1 Provision of the Services. Twilio will: (a) make the Services available to Partner or, as applicable, the End Customers pursuant to these Partner Terms, the Documentation and any applicable Order Forms; (b) comply with the Twilio SLA; (c) comply with the security terms for the Services as set forth in the provision the Services in accordance with these Partner Terms, the Documentation and any applicable Order Form; (e) make commercially reasonable efforts to use industry standard measures designed to scan, detect and delete Malicious Code; (f) if applicable, use trained, qualified personnel to provide the Services; and (g) use commercially reasonable efforts to provide Partner with applicable support for the Services as described in the Support Terms. 3.2 Partner Responsibilities. Partner will: (a) be solely responsible for all use (whether or not authorized) of the Services and Documentation under its account, including for the quality and integrity of End Customer Data and each End Customer Application and/or Partner Solution; (b) use, provide and resell Services only in accordance with these Partner Terms, the Acceptable Use Policy, Documentation, Order Forms or other applicable terms related to the use of the Services, and applicable laws; (c) be solely responsible for all acts, omissions and activities of its End Customers, including their compliance with these Partner Terms, Documentation, the Acceptable Use Policy, and any Order Forms or other terms of sales of the Services as mutually agreed to by the parties in writing; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Twilio promptly of any such unauthorized access or use; (e) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; (f) at its sole cost and expense, obtain all permits, licenses and registrations necessary in connection with its performance of these Partner Terms and manage the same on behalf of End Customers, as required by applicable law; (g) not attempt to reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code of the Services or related software; (h) ensure Twilio is provided with accurate and up-to-date information as required to provide the Services, including for the provisioning of phone numbers; (i) escalate any End Customer requests for credits account; (j) comply with the representations and warranties set forth in Section 9 (Representations, Warranties, and Disclaimers) below; (k) where Twilio has authorized Partner to resell Services, diligently market, promote, advertise, and provide access to the Software and maintain a staff of personnel with reasonable knowledge of Twilio and the Services; and (l) not engage in any deceptive, misleading, illegal or unethical marketing activities that may be detrimental to the Twilio brand. 3.3 Requirements for End Customer Terms. Partner shall ensure that before an End Customer accesses Customer TOS protective of Twilio as the Custome End Customer Terms any differences between the Customer TOS and the End Customer Terms. Partner will ensure that the End Customer has no rights to sue Twilio , and that Twilio is a third party beneficiary under the End Customer Terms. Partner shall not enter into agreements with End Customers that attempt to bind liability beyond the limitation of liability contained in these Partner Terms; or (ii) provisions that would block or suspend Services of an End Customer as more fully described in the TOS. In the event that an End Customer breaches the Customer TOS or End Customer Terms, Partner will immediately notify Twilio and will take whatever action Twilio directs to address the breach (which may include terminating the relationship with the End Customer). 3.4 Marketing. Twilio hereby grants to Partner a non-exclusive, non-transferable, and non-assignable, Marks to the Services. Partner will use the Twilio Marks exactly in the format provided and in accordance with any trademark usage authorizations granted by Twilio pursuant to https://www.twilio.com/legal/logo- use. Twilio may, from time to time, specify any uses of the Twilio Marks that are no longer permitted. 3.5 Partner Restrictions. Partner is not authorized to: (a) appoint any agents, dealers, sub-Partners, representatives, subcontractors, and/or other third parties to advertise, promote, resell, transfer or distribute the Services, unless Partner and Twilio agree otherwise in writing; (b) resell the Services to contact or allow End Customers to contact an official government-sponsored emergency telephone number (such as 911 in North America or 112 in the European Union and other locations worldwide) which is used to dispatch professional emergency respon Emergency Services is expressly identified as approved for Emergency Services at https://www.twilio.com/legal/emergency- services, and unless the End Customer agrees to use those Services strictly in accordance with the Emergency Services Addendum available at that link or enters such other agreement as Twilio deems appropriate; and (c) will not directly use and will not allow End Customers to use the Services in any manner that violates the Acceptable Use Policy or any applicable law. 3.6 Changes to the Services. Partner acknowledges that the features and functions of the Services may change over time; provided, however Twilio will not materially decrease the overall functionality of the Services. Although Twilio endeavors to avoid changes to the Twilio APIs that are not backwards compatible, if any such changes become necessary, Twilio will use commercially reasonable efforts to notify Partner at least sixty (60) days prior to implementation. In the event that Twilio makes a non- backwards compatible change to a Twilio API and such change materially and negatively impacts Partner Adverse API Change the Adverse API Change and (b) Twilio may agree to work with the Partner and/or End Customer to resolve or otherwise address the Adverse API Change, except where Twilio in its sole discretion has determined that an Adverse API Change is required for security reasons, by telecommunications providers or to comply with applicable law or regulations. 3.7 Professional Services. Partner may be authorized to sell Professional Services for implementation or Professional Services described in a separate, mutually agreed upon and signed appendix with Twilio. Partner will perform Professional Services for implementation to End Customers in connection with a valid Statement of SOW identify the technical requirements for the implementation and any additional or different payment terms. Partner shall similarly execute a separate statement of work with End Customer that aligns with 3.9 Reservation of Rights. All rights not specifically granted by Twilio hereunder are reserved by Twilio. 4. Additional Product and Services 4.1 Add-Ons. Twilio may make available through the Twilio Marketplace additional features, Add-On-party partners (ea Add-On Provider"). Twilio will provide such Add-Ons pursuant to the terms available at https://www.twilio.com/legal/add-ons. If an End Customer chooses to use an Add-On, then if Partner, at its sole discretion, decides to purchase any Add-Ons, Partner will be required to accept the Add-On -On as a standalone option to its End Customers or resell Add-Ons to others. 4.2 Provision of Short Codes; Phone Number Porting. Twilio may provide phone numbers and short at https://www.twilio.com/legal/phone-numbers and https://www.twilio.com/legal/short-codes. 5. Ownership, Use of Partner and End Customer Data, and Confidentiality 5.1 Ownership Rights. (a) Twilio Property. As between the parties, Twilio exclusively owns and reserves all right, title and (b) Partner Property. Partner exclusively owns and reserves all right, title and interest to the Partner Soluti (c) End Customer Property. End Customer exclusively owns and reserves all right, title and interest in and to the End Customer Applications and End Customer Data. 5.2 Feedback. Partner, End Customer and End Users may provide recommendations, suggestions, Feedback Partner grants Twilio a worldwide perpetual, irrevocable, royalty-free license to use, exploit and incorporate such Feedback into the Services. Please know, however, that (a) Feedback will not be treated as your Confidential Information or as End Customer Confidential Information; (b) Twilio may use or disclose, or choose not to use or disclose, Feedback for any purpose and in any way; (c) you and any End Customer are not entitled to any compensation or reimbursement of any kind from Twilio under any circumstances for Feedback. 5.4 Use of Partner Data and End Customer Data. Partner instructs us to use and disclose Partner Data, and Partner shall obtain the right for Twilio to use and disclose End Customer Data as necessary to (a) -current Privacy Policy, this Section 5.4, Section 5.6 (Confidentiality), and the Data Protection Addendum, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Services and (b) respond to any technical problems or Partner and/or End Customer queries and ensure the proper working of the Services. insecure. Accordingly, Partner agrees Twilio is not liable for any changes to, interception of, or loss of Partner Data and/or End Customer Data while in transit via the Internet or a telecommunications 5.5 Data Privacy. The Data Protection Addendum available at https://www.twilio.com/legal/data- protection-addendum DPA Privacy Policy agree with the terms of our Data Protection Addendum or our Privacy Policy, you should stop using the Services immediately. 5.6 Confidentiality. Confidential Information Disclosing PartyReceiving Party 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, including, without limitation, these Partner Terms, any Order Forms, Customer Data, the Documentation, security reports and attestations, audit reports, customer lists, pricing, phone numbers, and/or technical information and materials of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (i) is publicly available through no breach of these Partner Terms or fault of Receiving Party; (ii) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (iii) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without violation of Disclosing Party's rights; or (iv) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party. 5.6.2 Use and Disclosure. 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 the scope of these Partner Terms and (ii) disclose or make Confidential Information of Disclosing Party available to l counsel, accountants, Representatives ce with this Section 5.6. 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 5.6. 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. Notwithstanding the foregoing, Customer may d confidentiality that are at least as protective as the terms of this Section 5.6. 5.6.3 Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order Compelled Disclosures extent legally permitted). Disclosing Party will cover Receiving Party's reasonable legal fees for preparation of witnesses, deposition, and testimony to the extent such Compelled Disclosure is in connection with a lawsuit or legal proceeding to which Disclosing Party is a party or to the extent fees are incurred in connection with reasonable assistance provided to Disclosing Party in connection with Disclosing Party's efforts to contest such Compelled Disclosure. 5.6.4 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 5.6 and that, in the event of an actual or threatened breach of the provisions of this Section 5.6, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. 6. Building Regulated Services. Twilio offers both non-interconnected and interconnected VoIP products. Partner is responsible, just like Twilio, to comply with the regulatory requirements, taxes, and fees imposed on interconnected VoIP services. If Partner purchases a non-interconnected VoIP product or service from Twilio, it is still possible for Partner or the End Customer to build an interconnected VoIP service with Twilio's non-interconnected VoIP product. If Partner builds an interconnected VoIP service (regardless of which Twilio product is purchased), Partner and, as applicable its End Customer, will be responsible to comply with the regulatory requirements, taxes, and fees imposed on interconnected VoIP services. 7. Product Terms. Refer to www.twilio.com/legal for terms that apply to certain features and functionality of our Services. 8. Fees, Taxes, and Payment Terms 8.1 Fees. Partner agrees to pay fees in accordance with the rates listed at https://www.twilio.com/pricing, unless otherwise set forth in an order form or order confirmation Order Form nd Partner shall pay, in accordance with Section 8.3 (Payment Terms), any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunication provider as a result of Partner's or the Services. 8.2 Taxes and Communications Surcharges 8.2.1 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, communications, or withholding taxes Taxes If Partner is required by applicable law to withhold any Taxes from payments owed to Twilio, Partner will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by Twilio. Partner will provide Twilio with proof of payment of any withheld Taxes to the appropriate authority. 8.2.2 Communications Surcharges. All fees are exclusive of any applicable communications service or Communications Surcharges 8.2.3 Exemption. If Partner is exempt from paying certain Taxes or Communications Surcharges, Partner will provide the necessary exemption information as requested by Twilio or a valid exemption certificate issued by the appropriate authority via email to taxforms@twilio.com. Partner will be exempt on a going-forward basis once Twilio h determines, at any time, that Partner is not exempt from paying any Taxes or Communications Surcharges, Partner will promptly pay such Taxes or Communications Surcharges to Twilio, plus any applicable interest or penalties. 8.3 Payment Terms. 8.3.1 Credit Card. If Partner elects to pay via credit card, then Partner is responsible for either (a) enabling auto-ient credit card declines a charge for fees due, Twilio reserves the right to suspend the provision of the r is prohibited from creating new accounts until all negative balances are paid in full. 8.3.2 Invoicing. If Partner elects to receive invoices and pay in arrears and we approve you for the same, then invoices will be sent to you via email as a PDF on a monthly basis. Partner will make all of the undisputed fees hereunder within thirty (30) days of the date of the invoice. Unless you and Twilio agree otherwise in writing, all undisputed fees due pursuant to these Terms are payable in United States dollars, canceled, and fees paid are non-refundable. If you are overdue on any payment of undisputed fees and fail to pay within ten (10) business days of a written notice of your overdue payment, then we may assess, and you must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by applicable law, whichever is less. Following the notice of non-payment, we may also suspend the Services until you pay the undisputed fees due plus any late fees. 8.4 Payment Disputes. Partner will notify Twilio in writing in the event Partner disputes any fees, Taxes, or Communications Surcharges paid or payable by Partner under these Partner Terms. Where Partnerer is disputing any fees Taxes, or Communications Surcharges, Partner must act reasonably and in good faith and will cooperate diligently with Twilio to resolve the dispute. Partner will provide such notice to Twilio within sixty (60) days of the date Twilio bills Partner for such fees, Taxes, or Communications Surcharges due that are in dispute and the parties will work together to resolve the dispute promptly. 8.5 Audit. During the term of these Partner Terms and for a period of twelve (12) months following termination or expiration of these Partner Terms, Twilio or its authorized representative shall have the right to audit Partner's books and records to verify the accuracy of reports and ensure Partner has paid Twilio all fees entitled to it, provided that such audit shall be conducted (i) no more than once per calendar year, (ii) during Partner's regular business hours, and (iii) upon reasonable prior written notice. Twilio shall conduct the audit at its own expense, unless it is revealed that fees were underpaid by more than five percent (5%) during the audit period, in which case, Partner will reimburse Twilio for reasonable fees incurred for the audit in addition to such unpaid fees. 9. Representations, Warranties, and Disclaimers 9.1 Power and Authority Representation. Each party represents and warrants that it has validly entered into these Partner Terms and has the legal power to do so. 9.2 Export Controls. Each party will comply with export control and economic sanctions laws in all applicable jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States of America. Partner will obtain all licenses or other authorizations required to export, re- export, or transfer the Services. Each party represents that it (and in the case of Partner, also its End Customers) is not on any government prohibited/denied/unverified-party, sanctions, debarment, or Sanctions Lists- export, or transfer the Services to an entity on any Sanctions List without prior U.S. government or other required government authorization. Partner will (a) immediately discontinue its use of the Services if Partner becomes placed on any Sanctions List and if such End Customer becomes placed on any Sanctions List. 9.3 Consents and Permissions. Partner represents and warrants that it has provided and will continue to provide adequate notices, and has obtained and will continue to obtain the necessary permissions and consents to provide End Customer Data to Twilio for use and disclosure pursuant to Section 5.4 (Use of Partner Data and End Customer Data). 9.4 Performance of Services. Twilio represents and warrants that the Services perform materially in accordance with the applicable Documentation. For any breach of this warranty, Partner's exclusive -perform the affected Services or refund to Partner the fees Partner actually paid for the affected Services. PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. TWILIO ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED INDEMNIFY FOR ANY BETA OFFERING WHATSOEVER. 10. Mutual Indemnification Partner Indemnified Parties proceedi Twilio Indemnifiable Claim ner from any damages, fines or penalties Indemnified Parties or for settlement amounts approved by Twilio for a Twilio Indemnifiable Claim. 10.2 Infringement Opt likely to become, the subject of any Twilio Indemnifiable Claim for third-party intellectual property rights infringement or misappropriation, Twilio may at its option and expense: (i) procure for Partner the right to continue using the Services as set forth herein; (ii) modify the Services to make them non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate these Partner Terms, or, if applicable, terminate the Services that are the subject of any Twilio Indemnifiable Claim for third-party intellectual property rights infringement or misappropriation, and refund Partner any unused pre-paid fees. 10.3 Limitations. Twilio will have no liability or obligation under this Section 10 with respect to any Twilio Indemnifiable Claim arising out of (i) the use of the Services by Partner in breach of these Partner Terms; (ii) the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or (iii) Services for which there is no charge. Twilio Indemnified Parties proceeding made or brought against a Twilio Indemnified Party by a third party alleging or arising out of: (a) Partner's or any of breach of Section 3 (Partner Rights, Responsibilities, and Restrictions), (b) a ellectual property Partner Indemnifiable Claims government or regulatory body, attorneys for settlement amounts approved by Partner for a Partner Indemnifiable Claim. 10.5 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnifi Indemnified PartyIndemnifying Party Claim ailure to give prompt notice will not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole authority to defend or settle any such Claim; and (c) the Indemnified Party will reasonably cooperate s the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify under this Section 10 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the withheld, conditioned, or delayed. 10.6 Exclusive Remedy. Th 11. Limitation of Liability 11.1 Limitation on Indirect, Consequential, and Related Damages. 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 OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 11.2 Limitation of Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT 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. 11.3 Unlimited Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 11.2 (LIMITATION OF LIABIL SECTION 8 (FEES, PAYMENT TERMS, AND TAXES); OR (c) AMOUNTS PAYABLE PURSUANT T INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (MUTUAL INDEMNIFICATION). 12. Term; Suspension and Termination 12.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by Partner and continue until t Term 12.2 Termination for Convenience. Twilio may terminate these Partner Terms at any time, with or without cause, upon thirty (30) days written notice to Partner. 12.3 Material Breach. Either party may terminate these Partner Terms in the event the other party commits any material breach of these Partner Terms and fails to remedy such breach within ten (10) terial 12.4 Insolvency. Subject to applicable Law, Twilio may terminate these Partner Terms immediately by ceedings, disposal or transfer to a custodian (as defined in Chapter 11 of the United States Bankruptcy Code) of all creditors, or if Partner becomes the subject of bankruptcy or similar proceeding. 12.5 Blocking or Suspending Services. Twilio has the right to block access to an account or suspend Services (either in whole or in part) in accordance with the TOS or equivalent terms in the End User Customer Agreement, or in the event of nonpayment by Partner. If we block or suspend the Services then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Partner may incur in connection with any such blocking or suspension. 13. Survival. Upon termination of these Partner Terms, Partner's payment obligations, the terms of this Section 13, and the terms of the following Sections will continue to apply: Section 5 (Ownership, Use of Partner and End Customer Data, and Confidentiality), Section 8 (Fees, Taxes, and Payment Terms), Section 10 (Mutual Indemnification), Section 11 (Limitation of Liability), Section 14 (General), and Section 15 (Dispute Resolution). 14. General. 14.1 Compliance with Laws. Partner will comply with the applicable law relating to Partner's activities pursuant to these Partner Terms. Twilio will provide the Services in accordance with laws applicable to y (namely without regard for Partner's or an the Services in accordance with these Partner Terms, the Documentation, and applicable Order Form (if any). 14.2 Assignment. Neither party hereto may assign or otherwise transfer these Partner Terms, in whole (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either party may assign these Partner Terms, in whole in part, without consent to (a) a successor to all or substantially all of its assets or business or (b) an Affiliate. Any attempted assignment, delegation, or transfer by either party in violation hereof will be void. Subject to the foregoing, these Partner Terms will be binding on the parties and their respective successors and permitted assigns. 14.3 Relationship. Partner and Twilio are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Partner and Twilio will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. Partner and Twilio will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither Partner nor Twilio has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so. 14.4 No Third Party Beneficiaries. These Partner Terms do not confer any benefits on any third party (including any End User or Affiliate) unless it expressly states that it does. 14.5 Notices. Any notice required or permitted to be given hereunder will be given in writing to the other party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email. Billing-related notices to End Customer will be addressed to the relevant billing contact designated by End Customer in its account. Notices to Twilio will be copied to legalnotices@twilio.com, Attention: General Counsel. 14.6 Governing Law and Venue. These Terms will be governed by and interpreted according to the laws of the State of California without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 15 (Dispute Resolution), any legal suit, action or proceeding arising out of or related to these Terms or the Services will be instituted in either the state or federal courts of San Francisco, California, and the parties hereby consent to the personal jurisdiction of these courts. In the event of any adjudication of any dispute under these Partner Terms, the prevailing party in such action will be entitled to reimbursement of its attorne related costs by the non-prevailing party. 14.7 Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms 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, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; pandemic,flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause. 14.8 Waiver; Order of Precedence. No failure or delay by either party in exercising any right under these Partner Terms will constitute a waiver of that right. Titles and headings of sections of these Partner Terms are for convenience only and will not affect the construction of any provision of these Partner Terms. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) these Partner Terms, (3) the AUP, and (4) the applicable Documentation. 14.9 Severability. In the event that any provision of these Partner Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of these Partner Terms will continue in full force and effect. 14.10 Counterparts. These Partner Terms 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. Counterparts may be delivered via electronic mail (including .pdf or electronic signature) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes. 14.11 Entire Agreement. These Partner Terms (including all exhibits and attachments hereto) will constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, whether oral or written. No oral or written information or advice given by Twilio, its agents or employees will create a warranty or in any way increase the scope of the warranties or obligations in or registration portal or in any Partner purchase order document or similar document will be construed processes and the terms and conditions contained therein will be void and have no effect with regard to these Partner Terms even if signed by the parties after the Effective Date. 15. Dispute Resolution. 15.1Informal Dispute Resolution. In the event of a dispute, claim, or controversy arising out of or in connection with these Partner Terms or the breach termination, enforcement, interpretation or validity thereof (other than for claims or disputes related to the intellectual property of a party) (collectively, Disputes within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree in writing, then the parties may commence alternative dispute resolution or litigation proceedings. 15.2 Agreement to Arbitrate. If a dispute cannot be resolved under Section 15.1, Partner and Twilio agree to resolve any dispute relating to these Partner Terms or in relation to the Services by binding arbitration in San Francisco, California. This applies to all claims under any legal theory, unless the claim fits in one of the exceptions below in Section 15.3. It also applies even after Partner has ended its participation in the Partner Program. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that too. Pursuant to this Section 15.2, you understand that Partner and its Affiliates and Twilio and its Affiliates are giving up the right to have a judge and/or jury resolve any controversy or claim arising out of or relating to these Partner Terms or the Services. 15.3 Exceptions to Agreement to Arbitrate. Partner and its Affiliates on one hand, and Twilio and its Affiliates on the other hand, agree that we will go to court to resolve disputes relating to: a. Partne dress, domain names, trade secrets, copyrights or patents); or In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing. Appendix O Acceleration Program Participation Terms Program Terms Partner Terms of Service (as set forth at https://showcase.twilio.com/s/partner-tos) to which Partner Agreement the terms of the Agreement. To the extent there is a conflict between the Program Terms and the terms of the Agreement, the Program Terms shall control. Capitalized terms not defined in these Program Terms shall have the meanings given in the Agreement. In these Program Terms, refers to Twilio Inc., 375 Beale Street, Suite 300, San Francisco, CA 94105, and its affiliates. The term refers to you. To receive the benefits of this program, you tton or other mechanism provided. By accepting these Program Terms, you represent that you have the legal authority to enter into these Program Terms on behalf of your organization. PLEASE REVIEW THESE PROGRAM TERMS CAREFULLY. ONCE ACCEPTED, THESE PROGRAM TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND TWILIO. IF YOU DO NOT AGREE TO BE BOUND BY THESE PROGRAM TERMS OR DO NOT WISH TO PARTICIPATE IN THE TWILIO ACCELERATION 1. Joining the Program terms set forth on the Twilio Build Partner Program site located at https://www.twilio.com/partner- solutions. T required to be a participant in the Program. Applying to the Program does not constitute or guarantee admission into the Program, and Twilio may accept or reject any Program application in its sole discretion and for any reason. Participation in this Program does not authorize Partner, in any manner, to resell or sublicense Twilio's products or its Services or the products/services to any third party. on in the Program is conditioned on its acceptance of and compliance with these Program Terms and the terms of the Agreement. Twilio, (b) Partner must submit a complete summary and action plan for the Project (as defined below) that must be approved by Twilio in its sole discretion, (c) Partner must receive a welcome message from Twilio confirming that Partner is registered for the Program, which will include an estimate of the Funding (as defined below) available to the Partner, and (d) Partner must agree to the Program Terms Program and Partner must submit a new Project and be nominated again in order to be considered eligible to receive future Funding. Twilio may modify any or all criteria for a given applicant in its sole discretion and is under no obligation to make the same or comparable modifications for any other applicant. 2.Program Benefits. The Program may include certain non-financial benefits that Twilio makes available from time-to- documentation Twilio shall provide to Partner. If there is any direct inconsistency between these Program Terms and the terms for any specific Program benefits described in the Program documentation, the terms for the specific Program benefits will prevail to the extent of such inconsistency. 3. Marketing Event (as defined below) or POC (as defined below), as applicable, Twilio will provide Partner with a one-Funding mutually agreed upon Statement of Work (as defined below). The Funding will be disbursed in the currency of the United States (US$) and will not include a gross-up to reflect any applicable taxes (including, but not limited to, any sales, value added or goods and services tax) or other governmental charges imposed or payable in connection with the Funding. Partner shall be solely responsible for such taxes. !If Partner successfully creates a proof-of-co POC Customer Marketing EventPOCMarketing Event Project nding in the amount specified in the SOW Appendix (as defined below) within sixty (60) days of satisfying the requirements set forth below in Sections 3(b) or Funding Expiration Date Funding Start Date Partner under the Program benefits will automatically expire and end 12 months from the Funding Start Date. To the extent the Partner has not utilized the Funding in full by the Funding Expiration Date, the remaining balance of such Funding shall no longer be available to Partner. The Funding cannot be applied to any purchases made prior to the Funding Start Date. !Operational Requirements for POC Partners. 1.! transportation expenses incurred by Partner. 2.!For each POC, Partner must provide Twilio with a signed copy of its statement of work or equivalent agreement with Customer, which will be used as supporting documentation for the POC Funding. 3.!Partner must complete a state Statement of Work AppendixSOW Appendix description of the POC to be delivered by Partner to Customer hereunder. 4.!Twilio and Partner will cooperate reasonably and in good faith under the applicable SOW Appendix. 5.!Partner will allocate sufficient resources and timely perform all tasks necessary to enable Partner to perform its obligations under each SOW Appendix. 6.!Partner will immediately advise Twilio if Partner anticipates any delay in carrying out its obligations under the SOW Appendix. 7.!Twilio and Partner will provide complete, accurate and timely information, data and feedback as reasonably requested by the other party or Customer, as may be required for the POC, the Funding, or to otherwise fulfil each of their obligations under the Program Terms. 8.!Twilio and Partner will comply with the operational processes that may be required for the POC that are set forth in a SOW Appendix. 9.!Delivery and Acceptance of Deliverables. 1.!Process for Submission and Correction of Deliverables. Deliverables will be subject to such testing, inspection, acceptance or rejection in accordance with Acceptance Criteria the applic produced by Partner as a result of a POC under any SOW Appendix, and any future bug fixes, enhancements and upgrades developed by the Partner. Deliverable will be considered a Partner Solution. Upon completion of each Deliverable under a SOW Appendix, Partner will, as applicable: (a) submit a functionality to Twilio. Twilio is responsible for reviewing and testing all Deliverables in accordance with such SOW Appendix pursuant to any Acceptance Criteria or test plans mutually agreed upon in writing by the parties for such Deliverable. Twilio will provide Partner with written notification of acceptance for each Deliverable promptly upon acceptance, or as otherwise obligations to its Customer. 2.!Twilio shall have the right to reject all or part, or require the correction, of any Deliverable found not to meet the relevant specifications and standards or other Acceptance Criteria, whereupon such item shall be promptly replaced or corrected by Partner. 3.!If Twilio and/or its Customer, in its reasonable and good faith judgment, determines that any submitted Deliverable does not satisfy the Acceptance Criteria as specified in the applicable SOW Appendix for such Deliverable, Twilio specifying the deficiencies in detail. Partner will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to Twilio as soon as practicable. Twilio will again review and test the Deliverable against the agreed-upon acceptance criteria and detail any deficiencies to Partner in writing after resubmission of the Deliverable. 4.!If a Deliverable fails to meet the functional requirements specified in the applicable SOW Appendix after its second resubmission to Twilio, Twilio may either, as its sole and exclusive remedy: (i) again reject the Deliverable and return it to Partner for further correction and resubmission in accordance with the process described above (if the Deliverable is not accepted after two resubmissions or (ii) terminate the relevant SOW Appendix immediately upon written notice and will not be obligated to issue any Funding to Partner. 10.!Funding will only be provided to Partner once Partner successfully completes the requirements of the applicable Statement of Work. !Operational Requirements for MDF Partners. 1.!Partner mus Statement of Work AppendixSOW Appendix description of the Marketing Event. 2.!Twilio and Partner will cooperate reasonably and in good faith under the applicable SOW Appendix. 3.!Partner will allocate sufficient resources and timely perform any tasks reasonably necessary to perform its obligations under each SOW Appendix. 4.!Partner must use the Funding to offset Out-of-Pocket Costs directly related to the Marketing Event. 5.!Any updates, changes, modifications to or feedback regarding the Marketing Event must be detailed and provided to Twilio in writing. 6.!An MDF Partner must submit to Twilio a complete breakdown of the total cost of the Marketing Final Costs invoices, within thirty (30) days of the completion of the Marketing Event in order to receive the Funding. 7.!Partner is required to track leads, gather attribution data (i.e. Customer opened a Twilio account), register deals that result from the Marketing Event and provide all such details to Twilio promptly after the date of the Marketing Event. 4. liability and the limited remedies available to Partner as set forth in the Agreement shall be deemed to apply to all claims by Partner against Twilio for damages of any kind arising under these Program Terms. 5. Terms Regarding the Services. All terms an 6. Term and Termination. !am Discount Term End Date. !Termination for Convenience. Partner may terminate these Program Terms and Partner's notice of termination. Neither party will be responsible to the other for any costs or damages that are a direct result of this termination. !Immediate Termination. These Program Terms will immediately terminate upon written notice to Partner, if (i) the Program is discontinued; or (ii) the Agreement is terminated. !Effect of Termination. Irrespective of the reason for termination of these Program Terms or current and any further Program benefits will end and Partner will immediately stop using any and Partner will no longer be entitled to the Discount, and (d) Partner will no longer identify itself or hold itself out as a Program participant. Even though Partner is no longer participating in this Program, it may continue to be a Partner of Twilio, and the Agreement will continue in 7. General Provisions. !To the extent the context allows, Section 11 (General) of the Agreement shall apply to these Program Terms. !Independent Contractor. For all purposes hereof and in the performance of its obligations under these Program Terms, Partner is and shall remain an independent contractor as described in Section 11.4 of the Agreement. Nothing in these Program Terms or in a SOW Appendix shall be deemed or construed to create an employer/employee, joint venture or partnership relationship between Twilio and Partner or the Customer and Partner. Partner has no authority to commit the Customer in any way and will not attempt to do so or imply that it has the right to do so. !Entire Agreement. The terms and conditions of these Program Terms and the Application Site, together with terms applicable to specific Program benefits, form the entire agreement between Twilio and Partner concerning the Program. They replace all prior agreements and communications between Partner and Twilio or its affiliates relating to the Program. !Assignment. All Program benefits are personal to the Partner, and Partner may not sell, license, rent, or otherwise transfer any Program benefits. If Partner desires to assign these Program Terms or any rights or obligations under it, by operation of law, merger, change in control, or be affected by the permitted assignment. Partner's assignment will not relieve Partner of Partner's obligations under these Program Terms. Any attempted assignment in violation of this Section 11(d) is void. !Surviving Provisions. Provisions that by their nature should survive termination of these Program Terms or completion of an applicable SOW Appendix will also survive, including, without Exhibit A Statement of Work Appendix toAcceleration Program Participation Terms SOW Appendix SOW Appendix Effective Date Program Terms subject in all respects to the Program Terms and the Twilio Partner Terms of Service (as set forth at https://showcase.twilio.com/s/partner-tos conflicts with the Program Terms or the Agreement, then the terms of this SOW Appendix shall control. Capitalized terms not defined herein shall take the meaning ascribed to them in the Program Terms. 1) Twilio representative: 2) Partner representative: 4) Description of POC or Marketing Event, as applicable: 5) POC delivery or Marketing Event date, as applicable: 6) The Deliverables under this SOW Appendix shall include the following: 7) Funding amount: US$ 8) Percentage of POC Expenses covered by Funding: 9) Location of work or Marketing Event: 10) Acceptance Criteria: 11) Other terms: Taxes. The Funding is provided exclusive of any applicable tax pursuant to Section 3 of the Program Terms. License. Upon the payment of Funding from Twilio to Partner for the Deliverable, Partner grants Twilio and its affiliates a non-exclusive, perpetual, royalty-free, irrevocable, transferable, sublicensable through multiple tiers, worldwide license to copy, distribute, prepare derivative works of, make, use, modify, sell and offer to sell the Deliverable. Assignment and License. Upon the payment of Funding from Twilio to Partner for the Deliverable, Partner assigns and agrees to assign in the future to Twilio all right, title and interest in and to the Deliverable. Twilio grants Partner a non-exclusive, perpetual, royalty-free, irrevocable, transferable, worldwide license to copy, distribute, prepare derivative works of, make, use and modify the Deliverable. !LEGAL !PRIVACY !TWILIO.ORG !PRESS & MEDIA Appendix P Twilio Frontline App Terms Last Updated: April 14, 2021 Frontline App accept App Terms Terms. 1. Use of the Frontline App You will use the Frontline App in accordance with these App Terms, the Twilio Acceptable Use Policy, and applicable law or regulation. 2. IP Rights and Licenses Twilio owns all right, title, and interest in and to the Frontline App. Subject to all terms and conditions of these App Terms, Twilio grants you a limited, non-exclusive, non-transferable license to install and use one (1) object code copy of the Frontline App. 3. Data Privacy and Acknowledgement of Use Any data, including your personal information, collected, transferred, stored or otherwise processed through your use of the Frontline App will be processed in accordance with the Twilio Frontline Privacy Statement. 4. Availability of the Frontline App You understand that use and availability of the Frontline App may be interrupted, including for maintenance, upgrades, or network or equipment failures. Twilio may discontinue the Frontline App, any of its features, and/or support for the Frontline App, including its use on certain devices and platforms, at any time. 5. Feedback Twilio welcomes any recommendations, suggestions, ideas, or feedback you have about the Frontline Feedback are not entitled to any compensation or reimbursement of any kind for providing Feedback to Twilio or 6. Terms Applicable to Frontline App Use on iOS Devices This Section 6 only applies to the extent you are using the Frontline App on an iOS device. You acknowledge that these App Terms are between you and Twilio only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Frontline App or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Frontline App. If the Frontline App fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the Frontline App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Frontline App. Apple is not responsible for addressing any claims by you or any third party relating to the Frontline App or your possession and/or use of the Frontline App, including: (a) product liability claims; (b) any claim that the Frontline App fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Frontline App and/or your possession and use of the Frontline App intellectual property rights. You agree to comply with any applicable third-party -party beneficiaries of these App Terms, and upon your acceptance of these App Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these App Terms against you as a third-party beneficiary of these App Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that is on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. 7. Warranty Disclaimer THE FRONTLINE APP IS P EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND TWILIO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. 8. Indemnification (collectively, ) from and against any claim, demand, suit, or proceeding made or brought against a Twilio Indemnified Party by a third party alleging or arising out of your use of the Frontline App ( government or regulatory body, for settlement amounts approved by you for a Claim. Twilio reserves the right, at its own expense, to participate in the defense of any Claim. You will not do the following without Tw obligation to indemnify pursuant to this Section 8 or (b) admit to liability or fault or create any obligation on behalf of Twilio as part of a settlement of a Claim. 9. Limitation of Liability LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE APP TERMS OR OTHERWISE IN CONNECTION WITH THE FRONTLINE APP WILL IN NO EVENT EXCEED FIFTY DOLLARS ($50.00). YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE APP TERMS BETWEEN THE PARTIES AND TWILIO HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE FRONTLINE APP. 10. Term; Termination These App Terms, as may be updated from time to time, will commence on the date you (a) begin using, installing, or accessing the Frontline App, or (b) click to accept these App Terms, and will continue until terminated in accordance with this Section 10. You may terminate these App Terms at any time, for any or no reason, by immediately ceasing your use of the Frontline App. If you commence using the Frontline App again, you are consenting to these App Terms. Twilio may, in its sole discretion, suspend or terminate these App Terms immediately (a) if Twilio suspects you are in breach of these App Terms; (b) if Twilio determines that you are engaged in activity that is suspected or actually fraudulent, illegal or otherwise malicious or fails to comply with applicable law; (c) causes a significant risk of reputational harm to Twilio; or (d) to prevent harm to the security, stability, availability, or integrity of Twilio. 11. Modification; Conflict Twilio may update or modify these App Terms (including any terms or policies incorporated by Additionally, Twilio will notify the Twilio customer that authorized your access to the Frontline App of effective date of any material amendments or modifications. Except as otherwise specified by Twilio, updates will be effective upon the effective date indicated at the top of these App Terms. The updated version of these App Terms will supersede all prior versions. Your continued access or use of the Frontline App on or after the effective date of the changes to these App Terms (including any terms or policies incorporated by reference) constitutes your acceptance of any updates. If you do not agree to any updates, you should stop using the Frontline App. Twilio may not be able to provide at least thirty (30) days prior written notice of updates to these App Terms that result from changes in the law or requirements from telecommunications providers. Appendix Q Twilio same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Twilio will respond expeditiously to claims of copyright infringement committed using the Twilio service and/or the Site If you are a copyright owner or an agent thereof, please report the alleged copyright infringement taking place on or through the Site by completing the DMCA Notice using the button below or providing Twilio Inc. Attn: Twilio Designated DMCA Agent, Legal Department 101 Spear Street, Suite 300 San Francisco, CA 94105 +1 877-889-4546 legalnotices@twilio.com Upon receipt of the DMCA Notice, Twilio will take whatever action it deems appropriate, in its sole discretion, including removal of the content at issue from the Site. View the DMCA Request Form Appendix R Twilio Trademark Usage Guidelines These Trademark Usage Guidelines are for Twilio Inc.'s licensees, authorized resellers, developers, customers, and other parties who wish to use Twilio's trademarks, names, and logos ("Twilio Trademarks") for their own purposes, including in promotional, advertising, instructional, or reference materials, or in or on web sites, products, labels, or packaging. Note that any use of Twilio logos and/or use of any Twilio Trademarks outside of these guidelines requires permission and without such permission may constitute trademark infringement under federal and state laws. Twilio Trademarks Twilio Trademarks are valuable assets Twilio needs to protect. We ask that you help us by properly using and crediting Twilio Trademarks in accordance with these guidelines. The Twilio Trademarks specifically include: !TWILIO !TWIML !The Twilio Rotary logo !MODERN COMMUNICATIONS Permissible Uses You may generally use the TWILIO and TWIML trademarks to refer to the associated Twilio products or services. For instance, an authorized developer may note in its advertisements and products that it utilizes the Twilio software. Similarly, such a developer may issue a press release stating that it has built its product on the Twilio platform. Relationship of Products or Services You may indicate the relationship of your products or services to Twilio products or services by using accurate, descriptive tag lines such as "with Twilio technology," "built on the Twilio platform" in connection with your product or service name. Within text or body copy, such tag lines may appear in the same type as your product or service name. On product, packaging, advertising and other collateral where your product or service name is displayed apart from body copy, make sure that the tag line appears in significantly smaller type than your name. You should also distinguish the tag line from your mark by using a different font or color. Open Source Software Most open source licenses do not grant, and many exclude, a license of trademark rights. Do not assume you can use the name of a source code base in the name of your distribution developed from that code base. Without a license or permission, you may not incorporate Twilio Trademarks in the name of your distribution or other products that incorporate open source elements. Truthful statements incorporating a trademark are generally allowed (for example, in the format "MyImplementation, derived from Trademarked ProductName"), but you should check the terms of the license for the original source code or any posted trademark guidelines for the project. User Groups Twilio generally permits use of its marks in groups name that include phrases such as "user group," "special interest group," etc., that clarify the relationship between Twilio and the group and do not create confusion about the source of products or services. This applies only to user groups that are not formally doing business as commercial entities. If you are administering a user group that includes a Twilio trademark in its name, do not claim any trademark rights in the name or attempt to register the name or your logo with a trademark office, and do not register the name as a trade name or business name, or conduct any business under the name. Correct Use Proper use of Twilio Trademarks reinforces their role as brands for our products and services, and helps prevent them from becoming generic names that can be used by anyone. Examples of former trademarks that became generic terms are "aspirin," "cellophane," and "escalator." By adhering to the following rules, you help protect Twilio's investment in its trademarks. Use a Generic Term Use a generic term in association with each Twilio trademark the first time the mark appears in text, and as often as possible after that. You need not include generic names in headlines, package titles and documentation titles. "Twilio platform" is an example of generic term use. Use as Adjectives Twilio Trademarks are adjectives and should not be used as nouns, or in the possessive or plural form. For example, "Twilio platform's benefits" not "Twilio's benefits" Do Not Vary the Trademarks Do not vary Twilio Trademarks by changing their spelling or abbreviating them. For example, "Twilio OpenVBX platform" not "TwilVBX" or the like. Do not use any name or trademark confusingly similar to the Twilio Trademarks or any other trademark or trade name owned by Twilio for which Twilio has not given you permission. And do not use the Twilio Trademarks in such proximity to any of your own trademarks or trade names or third party trademarks so as to create a combination or composite mark. "Twilio" As a Trade Name Trade names are the actual business names of companies. Trademarks and trade names are not the same, even though many companies use their trade names as trademarks. If you are using "Twilio" as a substitute for Twilio Inc., you are using it as a trade name. Because they are nouns, trade names can be used in the possessive and do not require a generic term or a trademark symbol. Thus, you should not use a ® after "Twilio" when it appears as part of the full corporate name or as a trade name. Examples: !Corporate Name: This software was developed by Twilio Inc. !Trade Name: This software was developed by Twilio. !Trade Name: Twilio's latest software developments are outstanding. !Trademark: The Twilio® platform leads the industry. Trademark Symbols And Credit Lines Trademark Symbols Proper trademark attribution through trademark symbols and credit lines helps make others aware of our rights, and helps prevent them from becoming generic terms. Credit lines also help clarify that they belong to Twilio. Accordingly, you should attribute ownership of Twilio Trademarks to Twilio Inc. by using trademark symbols (TM or SM or ®) and credit lines as detailed below. Use the ® symbol with the most prominent appearance of the "Twilio" mark on products, packaging, manuals, advertisements, promotional materials and Web pages (for example, in the headline of an advertisement), and the first use of the mark in text or body copy. This includes situations where "Twilio" is a part of a product or service name (for example, Twilio® Twiml® platform). An example would be XYZ Develops New Product on the Twilio® Platform XYZ Corporation has developed the ABC telecommunications app based on the Twilio® platform. The ABC app is one of numerous products XYZ has developed using Twilio software. "Twilio" receives a trademark symbol in the headline because this is the most prominent appearance, and when it appears as part of the "Twilio platform" name because this is the first appearance in text. While there is no trademark symbol after "Twilio" when it appears in front of the term "software" since this is not the first time that the term "Twilio" appeared in body copy. That said, it is always acceptable to continue using the ® after "Twilio" throughout the document. Credit Line All products, packaging, manuals, advertisements, promotional materials and web pages bearing Twilio Trademarks should include the following trademark credit line. "Twilio and Twiml are registered trademarks of Twilio and/or its affiliates. Other names may be trademarks of their respective owners." The credit line may appear anywhere on the collateral, but typically is displayed on a copyright page, the back of a package or at the end of a document or web page. Prohibited Uses You may not use the Twilio Rotary Design logo or the MODERN COMMUNICATIONS tagline without express written permission from Twilio. You may not use any of the Twilio Trademarks !in a manner that could cause confusion as to Twilio sponsorship, affiliation or endorsement; or !in a manner that shows Twilio or its products in a false or derogatory light Take particular care not to use Twilio Trademarks as set out below. Company, Product or Service Names Do not use Twilio Trademarks or potentially confusing variations as all or part of your company, product or service names. If you wish to note the relationship of your products or services to Twilio products or services, please use an appropriate tag line as detailed above. For example, "XYZ for Twilio database" not "TwiXYZ or XYZ Twilio" Logos For more information regarding use of Twilio logos, please review the Third-Party Twilio Logo Usage Guidelines. Trade Dress You may not imitate Twilio trade dress, type style or logos. For instance, do not copy Twilio's layout or styling of its web pages for use with your product, or display your product name in the distinctive logotype associated with the Twilio logo. Domain Names Do not use Twilio Trademarks or potentially confusing variations in your Internet domain name. This helps prevent Internet users from being confused as to whether you or Twilio is the source of the web site. Merchandise Items You may not manufacture, sell or give-away merchandise items, such as T-shirts and mugs, bearing any of the Twilio Trademarks or any other Twilio marks or names, including symbols, logos, or icons, except pursuant to an express written trademark license from Twilio. Report Usage Violations Please report suspected misuse of logos, trademarks or copyrighted material to trademark@twilio.com. Ownership Nothing in these guidelines gives you any right, title or interest in the Twilio Trademarks, or any other trademark or trade name of Twilio, except the right to use the trademarks solely to identify your actual use of Twilio's software and platform. You agree that the Twilio Trademarks, and all intellectual property rights therein, are solely owned by Twilio, and that any and all uses Trademarks, and all goodwill derived therefrom, whether or not done pursuant to the written Agreement, shall inure solely to the benefit of Twilio. Questions Or Requests If you have any questions regarding Twilio Trademarks or to request permission for use, please contact the Twilio Legal Department at: Twilio Inc. 375 Beale Street, Suite 300 San Francisco, CA 94105 trademark@twilio.com Last Updated September 28, 2015 Appendix S Twilio's Binding Corporate Rules Binding Corporate Rules (BCRs) are binding data protection policies that are approved by European data protection authorities after significant consultation with those authorities and enable multinational businesses, such as Twilio, to make intra-organisational transfers of personal data across borders in practices, based on strict principles established by EU data protection authorities. provide adequate protection of personal data throughout the organisation, regardless of the group l data to Twilio group members across borders in compliance with EU data protection law. From time to time, Twilio may update its BCRs, in accordance with the Binding Corporate Rules Updating Procedure. The links below reflect our most recent Binding Corporate Rules, which took effect on July 9th, 2019. Twilio's Binding Corporate Rules Controller Policy (Applicable When Twilio is Processing Personal Data as a Controller) Processor Policy (Applicable When Twilio is Processing Personal Data as a Processor) Appendix T Twilio CCPA Notice Effective November 21, 2019 Twilio Privacy Statement and the SendGrid Privacy Statement so e right place. This notice supplements the Twilio Privacy Statement as well as any other agreement you have with us, such as the Twilio Terms of Service, Master Sales Agreement, or other agreement for the use of our in those agreements. Our Privacy Statement defines Customer Account Data, Customer Usage Data, and Customer Content. personal information. Personal information is defined in the California Consumer Privacy Act, definition. that law. sell, rent, or otherwise disclose your personal information in exchange for money or something else of value. The Twilio Privacy Statement desc which we process personal information in Customer Account Data, Customer Usage Data, and Customer Content. For the purposes of the CCPA, in the same way that we act as a processor of Customer Content, we act as a service provider for Customer Content. For Customer Account Data and Customer Usage Data, we act as a business, which means that we may use this data for our own business purposes. Regardless of whether we are acting as a business or a service provider, we process, retain, use, and disclose personal information only as necessary to provide the services we have agreed to provide. In other words, we use the personal information we have strictly for business purposes. You can read more about our business purposes for each type of personal information in our Privacy Statement. Regardless, we will not: !sell your personal information o !process your personal information for any commercial purpose other than providing the services; or !retain, use, or disclose your personal information outside of the scope of the agreement we have with you. To be clea information as consideration for any services or other items of value that we provide to you. We also understand our obligations under the CCPA and will comply with them. By the same token, you are responsible for ensuring that you have complied, and you will continue to comply, with the requirements of the CCPA in your use of the services we provide to you and your own processing of personal information. We will ensure that any person we authorize to process your Customer Content has agreed to protect personal information consistent with our confidentiality obligations under our agreement with you. We use third party service providers to fulfill our obligations under our agreement with you and for our own business purposes. When we do use service providers, we have entered into a written contract that includes terms substantially similar to this notice. We conduct appropriate due diligence on our service providers and we will remain liable for any breach of this notice that is caused by an act, error, or omission of our service providers. Your access and deletion rights As part of the services we provide to you, we provide you with a number of self-service features at no additional cost, including the ability to delete, retrieve, or restrict use of Customer Content, which you may use in complying with your obligations under the CCPA with respect to responding to requests from consumers. If you need more assistance than that, let our Support team know; we will provide reasonable additional and timely assistance to assist you in complying with your obligations with respect to consumer access and deletion requests under the CCPA. If additional assistance requires going above and beyond what Support can provide, further assistance may be at your expense. In the event that we receive any request, complaint, or other communication from a verifiable consumer, regulatory authority, or third party in connection with our processing of your Customer Content, we will promptly inform you and provide details, to the extent legally permitted. Unless legally obligated to do so, we will not respond to any such request, inquiry or complaint without your prior consent except to confirm that the request relates to you. Data retention and deletion of content We hate to see any relationship end. However, if our agreement with you terminates, we will give you thirty days after the termination effective date to obtain a copy of your Customer Content via the Twilio ys after the termination effective date, and automatically delete any stored Customer Content on our back-up systems sixty days Content on our back-up systems for one year after the termination effective date, after which it will be -up systems, we will securely isolate that data and protect it from any further processing, except as otherwise required by applicable law. Upon termination of our agreement with you, we may retain Customer Content in storage for the periods described in this section, provided that we will ensure that your Customer Content is processed only as necessary for the purpose specified in this notice and no other purpose. Also, at all times, we will ensure that we protect Customer Content as we have promised to, and as the law requires us to. Of course, if we are required by law to retain any portion of your Customer Content, we may do so, regardless of the requirements of this section. If we must do so, we will ensure we maintain the same security protections on your Customer Content. Security procedures and practices appropriate to the nature of the personal information we process. You may read more about the measures we take to protect Customer Content from a security breach involving the Twilio Services at https://www.twilio.com/security and involving the SendGrid Services at https://sendgrid.com/policies/security. As part of the services, you may elect to use certain features and functionalities that impact the security of the data processed, such as encryption of voice recordings, use of multi-factor authentication on your account, or TLS encryption within the SendGrid Services. You are responsible for reviewing the information we make available regarding our data security, including our audit reports, and making an independent determination as to whether the services we provide to you meet your requirements and legal obligations, including your legal obligations. You are also responsible for properly configuring the services we provide to you and using available features and functionalities to maintain appropriate In the event that we become aware of a security breach that involves your Customer Content, we will, to address. We will make reasonable efforts to identify and, to the extent any security incident is caused by our violation of the requirements of this notice, remediate the cause of the security incident. We will provide reasonable assistance to you in the event that you are required by law to notify a regulatory authority or any individuals of a security incident. Material changes in our practices or in the law We may modify this notice where required, such as due to a material change in our business practices notify you before such modifications take effect as our agreement with you provides. Appendix U Twilio Cookie Notice Mmmm!! Cookies! Oh wait, not that kind of cookie... this kind of cookie: www.twilio.com, or the Twilio Account Portal, we and our service providers acting on our behalf automatically collect certain data using tracking technologies like cookies and web beacons. This notice describes what tracking technologies we use and what we use them for. A cookie is a piece of data contained in a very small text file that is stored in your browser or elsewhere on your hard drive. Cookies allow Twilio to identify your device as you navigate through our publicly- accessible website (the Twilio Site) or our account portal. We also use them to recognize return visitors to the Twilio Site. This helps make navigating and interacting with the Twilio Site and our account portal more efficient, easy and meaningful. By themselves, cookies do not identify you specifically. Rather, they recognize your web browser. So, unless you identify yourself specifically to Twilio, like si you are just because you visited the Twilio Site. Twilio uses both session and persistent cookies. Session cookies are cookies that disappear from your computer or browser when you turn off your computer. Persistent cookies stay on your computer even Twilio Site or account portal may not work for you. Cookie Type Description Management Settings Required cookies make it possible for you to access our account portal, navigate within the portal, and access information related to your account. Required cookies are necessary to operate Required Each time you log into the account cookies portal, a cookie containing an them. encrypted, unique identifier that is tied to your account is placed on your browser. These cookies allow Twilio to uniquely identify you when you are logged into the account portal and to Cookie Type Description Management Settings process your online transactions and requests. Functionality cookies allow the Twilio Site and account portal to remember information you have entered or preferences you select, and provide You can use your browser settings to opt out enhanced, more personal features. of functionality cookies. For more information Functionality These cookies allow you to optimize on how to do that, click here. Note that cookies opting out may affect the functionality of our after logging in. These cookies can also Site or account portal for you. be used to remember changes you have made to text size, fonts and other parts of web pages that you can customize. We may use Flash cookies to store To manage privacy and storage settings for preferences you set inside your Twilio Flash cookies, click here. Account. These cookies collect data about how visitors use the Twilio Site. This includes data like which pages visitors You can use your browser settings to opt out Performance collect information that individually of performance cookies. For more cookies identifies visitors. The data these information on how to do that, click here. cookies collect is aggregated and intended to be anonymous and used to improve how the site functions and performs. Cookie Type Description Management Settings We may also have third party service providers help us track and analyze usage and volume statistical information from individuals who visit To manage privacy and storage settings for our Site. Or, we may use Flash cookies Flash cookies, click here. for this. Flash cookies are different from browser cookies because of the amount of, type of, and how data is stored. Third party service providers that currently place performance cookies include: Crazy Egg - Used to help analyze To opt-out of Crazy Egg tracking technologies, website page performance. click here. KissInsights - This tracking technology is placed by Qualaroo, a service provider we use for customer surveys policy, click here. and analytics about our website. Google Analytics - We use Google For information on how to opt-out of tracking Analytics to help analyze which pages technologies from Google Analytics, on the Twilio Site visitors to the site click here. viewed. Heap Analytics - We use Heap policy, click here. Analytics to help analyze visitor Cookie Type Description Management Settings behavior on our Twilio Site and account portal. Hubspot we use Hubspot to manage For more information about how to opt-out contact forms and the web store for of tracking technologies from Hubspot, our subsidiary, Electric Imp. click here. LinkedIn Insights - We use LinkedIn Analytics to help analyze how visitors from LinkedIn interact with our click here. website. Sift Science We use Sift Science to help prevent fraud. policy, click here. Twitter Analytics We use Twitter For information on how to opt-out of tracking Analytics to help analyze which pages technologies from Twitter Analytics, on the site visitors from Twitter to the click here. site viewed. Adobe Typekit We use Typekit to enhance our Twilio Site typography. Adobe uses cookies to track usage policy, click here. statistics. The above list of third party service providers that place cookies is subject to change and list may not include all such providers at any given time. Cookie Type Description Management Settings Twilio may have third party service providers track and analyze usage and volume statistical information from those who visit our Twilio Site. Twilio To learn more about how to opt out of sometimes uses cookies placed by its targeting and advertising cookies, you can go third party service providers to track to the Your Online Choices page, the performance of our the Network Advertising Initiative page, and Targeting or advertisements. For example, these the Consumer Advertising cookies remember which browsers Choice page. These opt-out tools are provided cookies have visited the Twilio Site. This data by third parties, not Twilio. We do not control given to the third party service or operate these tools or the choices that providers does not include advertisers and others provide through these information that identifies you tools. specifically, but this data may be re- associated with information that identifies you specifically after Twilio receives it. Twilio also uses third-party advertising networks that collect IP addresses and other data from web beacons (see below) on the Twilio Site, from emails, and on third-party websites. Ad networks follow your online activities over time through automated means, such as cookies and web beacons. They use this data to provide ads about products and services tailored to your interests. You may see these ads on other websites. This helps us manage and track the effectiveness of our marketing. From time to time, Twilio works with To manage privacy and storage settings for third parties to provide certain Flash cookies, click here. features on our Twilio Site or to Cookie Type Description Management Settings display ads based upon your web browsing activity. These third parties may use Flash cookies to collect and store data. Below are third parties that currently place tracking technologies on the Twilio Site. AppNexus - We use AppNexus to track For information on how to opt-out of how you use the Twilio Site to help us AppNexus tracking technologies, click here. target ads to you on other websites. DoubleClick - We use DoubleClick to track how you use the Twilio Site to For information on how to opt-out of help us target ads to you on other DoubleClick tracking technologies, click here. websites. Marketo - We use Marketo for lead For information on how to opt-out of management and marketing Marketo tracking technologies, click here. automation. Eloqua - We use Eloqua for marketing For information on how to opt-out of Eloqua automation and lead management. tracking technologies, click here. Facebook Custom Audience - We use For information on how to opt-out of Facebook Custom Audience to track Facebook Custom Audience tracking how you use the Twilio Site and target technologies, click here. ads to you on Facebook. Cookie Type Description Management Settings Google Adwords Conversion - We use Google Adwords Conversion to track For more information on opting out of Google our support conversion metrics for our advertising tracking technologies, click here. search engine marketing campaigns. Google Dynamic Remarketing - We use Google Dynamic Remarketing to target For more information on opting out of Google search engine marketing to users of advertising tracking technologies, click here. the Google search engine Google Tag Manager - We use Google Tag Manager to dynamically manage For more information on opting out of Google how and when all marketing cookie advertising tracking technologies, click here. scripts are included or excluded from pages. Quantcast - We use Quantcast to track For information on how to opt-out of how you use the Twilio Site and target Quantcast tracking technologies, click here. ads to you on other websites. LinkedIn Ads - We use LinkedIn Ads to For information on how to opt-out of LinkedIn to track how you use the Twilio Site Ads advertising tracking technologies, and target ads to you on LinkedIn. click here. LinkedIn Marketing Solutions - We use For information on how to opt-out of LinkedIn LinkedIn Marketing Solutions to track Marketing Solutions advertising tracking how you use the Twilio Site and target technologies, click here. ads to you on LinkedIn. Cookie Type Description Management Settings LiveRamp - We use LiveRamp to track For more information on opting out of how you use the Twilio Site to help us LiveRamp tracking technologies, click here. target ads to you on other websites. Marin Search Marketer - We use the Marin Search Marketer help track the For information on opting out of Marin Search success of search engine marketing Marketer tracking technologies, click here. campaigns. PerfectAudience - We use For information on opting out of PerfectAudience to track how you use PerfectAudience tracking technologies, the Twilio Site to help us target ads to click here. you on other websites. Twitter Advertising - We use Twitter Advertising to track the success of and For information on opting-out of Twitter target social ads placed on Advertising tracking technologies, click here. twitter.com. The above list of third party service providers that place cookies is subject to change and the above list may not include all such providers at any given time. We use web beacons along with cookies to gather data about use of the Twilio Site and account portal and interaction with emails from Twilio. Web beacons are clear electronic images that can recognize certain types of data on your computer, like cookies, when you viewed a particular website tied to the web beacon, and a description of a website tied to the web beacon. For example, we may put web beacons in marketing emails that notify us when you click on a link in the email that directs you to the Twilio Site or one of its pages. We use web beacons to operate and improve the Twilio Site and email communications. What We Do With IP Addresses When you visit the Twilio Site, account portal, or use our products and services, like our APIs, we collect your IP addresses to track and analyze information about the devices that are connecting to our systems and about where those devices are located. For example, we use IP addresses to track which regions visitors to our Twilio Site or Customers logging into our account portal come from and to detect possible fraud. How We Treat Do Not Track Signals/California Do Not Track Disclosure setting. At this time, there is no general agreement on how companies like Twilio should interpret Do Not Track signals. Therefore, Twilio does not currently commit to respond to DNT signals, whether that signal is received on a computer or on a mobile device. Twilio does, however provide meaningful choices to you about the information that is collected through cookies and web beacons through the various opt-out options set forth above. We will continue to monitor developments around DNT browser technology and the implementation of a standard. How you contact us You may contact via email at privacy@twilio.com. Or, you may write to us at the address listed below. Twilio Inc. 375 Beale Street, Suite 300 San Francisco, CA 94105 Appendix V Data Protection Addendum Last Updated: January 8, 2021 Addendum Twilio into which it is Agreement I. Introduction 1.!Definitions. . "Applicable Data Protection Law" refers to all laws and regulations applicable to personal data under the Agreement including, without limitation, the General Data Protection Regulation (EU 2016/679) ("GDPR"). . , "processor", "data subject", "personal data", and"processing" (and"process") have the meanings given in accordance with Applicable Data Protection Law. . "Customer Account Data" including the names and/or contact information of individuals authorized by Customer to access Customer Account Data also includes any data Twilio may need to collect for the purpose of identity verification, or as part of its legal obligation to retain subscriber records. . "Customer Content" means (a) personal data exchanged by means of use of the Services, such as text, message bodies, voice and video media, images, email bodies, email recipients, and sound, and (b) data ehalf such as communication logs within the Services or marketing campaign data Customer has uploaded to the SendGrid Services. . "Customer Data" has the meaning given in the Agreement. Customer Data includes Customer Account Data, Customer Usage Data, Customer Content, and Sensitive Data, as defined in this Addendum. . "Customer Usage Data" means data processed by Twilio for the purposes of transmitting or exchanging Customer Content, including data used to identify the source and destination of a communication, such context of providing the Services, and the date, time, duration and the type of communication and (b) activity logs used to identify the source of Service requests, optimize and maintain performance of the Services, and investigate and prevent system abuse. . "Privacy Policy" means the then-current privacy policy for the Services available at https://www.twilio.com/legal/privacy. . "Security Controls" organisational measures to protect Customer Data, or, if the Agreement has no such terms, then the Twilio Security Overview available at https://www.twilio.com/legal/security-overview. . "Security Incident" means a confirmed or reasonably suspected accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data. . "SendGrid Services" means the services and any application programming interface branded as manage email communications and other related digital communications and tools through the website at https://www.sendgrid.com, including all programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by Twilio. The SendGrid Services excludes any Twilio Services. . "Sensitive Data" identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account combinations of informatio or any other applicable law relating to privacy and data protection. . "Services" means, collectively, the Twilio Services and SendGrid Services. . "Twilio Services" means the products and services provided under a Twilio account that are used by Customer, ordered by Customer under an Order Form, or offered on a trial basis or otherwise free of charge. The Twilio Services generally consist of: (a) platform services, namely access to any application Services excludes any SendGrid Services. Any capitalized term used but not defined in this Addendum has the meaning provided to it in the Agreement. II. Controller and Processor 2. Relationship of the Parties. 2.1 Twilio as a Processor. The parties acknowledge and agree that with regard to the processing of Customer Content, Customer may act either as a controller or processor and Twilio is a processor. 2.2 Twilio as a Controller of Customer Account Data. The parties acknowledge that, with regard to the processing of Customer Account Data, Customer is a controller and Twilio is an independent controller, not a joint controller with Customer. 2.3 Twilio as a Controller of Customer Usage Data. The parties acknowledge that, with regard to the processing of Customer Usage Data, Customer may act either as a controller or processor and Twilio is an independent controller, not a joint controller with Customer. 3. Purpose Limitation. Twilio will process personal data in order to provide the Services in accordance with the Agreement. Section 2.1 of Schedule 1 (Details of Processing) further specifies the duration of the processing, the nature and purpose of the processing, and the types of personal data and categories outlined in Section 5 (Customer Instructions). Twilio will process Customer Account Data and Customer Usage Data in accordance with Applicable Data Protection Law and consistent with the Privacy Policy, the Agreement, and this Addendum. 4. Compliance. Customer is responsible for ensuring that (a) it has complied, and will continue to comply, with Applicable Data Protection Law in its use of the Services and its own processing of personal data and (b) it has, and will continue to have, the right to transfer, or provide access to, the personal data to Twilio for processing in accordance with the terms of the Agreement and this Addendum. III. Twilio as a Processor - Processing Customer Content 5. Customer Instructions. Customer appoints Twilio as a processor to process Customer Content on Addendum, and as otherwise necessary to provide the Services to Customer (which may include investigating security incidents and preventing spam or fraudulent activity, and detecting and preventing network exploits and abuse); (b) as necessary to comply with applicable law; and (c) as Permitted Purposes 5.1 Lawfulness of Instructions.Customer will ensure that its instructions comply with Applicable Data Protection Law. Customer acknowledges that Twilio is not responsible for determining which laws are or will meet the regulation, or rule, including Applicable Data Protection Law. Twilio will inform Customer if it becomes regulation, or rule, including Applicable Data Protection Law. 5.2 Additional Instructions. Additional instructions outside the scope of the Agreement, an Order Form, or this Addendum will be agreed to between the parties in writing, including any additional fees that may be payable by Customer to Twilio for carrying out those instructions. 6. Confidentiality. 6.1 Responding to Third Party Requests. In the event that any request, correspondence, enquiry or complaint from a data subject, regulatory authority, or third party is made directly to Twilio in ustomer Content, Twilio will promptly inform Customer and provide details of the same, to the extent legally permitted. Unless legally obligated to do so, Twilio will xcept to confirm that the request relates to Customer. 6.2 Confidentiality Obligations of Twilio Personnel.Twilio will ensure that any person it authorizes to process the Customer Content has agreed to protect personal data in accordance with Twilio's confidentiality obligations under the Agreement. 7. Sub-processing. 7.1 Sub-processors. Customer agrees that Twilio may use sub-processors to fulfill its contractual obligations under the Agreement. Where Twilio authorizes any sub-processor as described in this Section 7, Twilio agrees to impose data protection terms on any sub-processor it appoints that require it to protect the Customer Content to the standard required by Applicable Data Protection Law, such as including the same data protection obligations referred to in Article 28(3) of the GDPR, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR. 7.2 General Consent for Onward Sub-processing. Customer provides a general consent for Twilio to engage onward sub-processors, conditional on the following requirements: (a) Any onward sub-processor must agree in writing to only process data in a country that the European Commission h equivalent to the Standard Contractual Clauses, or pursuant to a Binding Corporate Rules approval granted by competent European data protection authorities; and (b) Twilio will restrict the onward sub- necessary to provide the Services, and Twilio will prohibit the sub-processor from processing the personal data for any other purpose. 7.3 Current Sub-processors and Notification of New Sub-processors. If Twilio Ireland Limited or Twilio Japan G.K. is the Twilio party to the Agreement, then Customer consents to Twilio engaging Twilio Inc. as a sub-processor, which has its primary processing facilities in the United States of America. Customer consents to Twilio engaging additional third party sub-processors to process Customer Content within the Services for the Permitted Purposes provided that Twilio maintains an up-to-date list of its sub- processors at https://www.twilio.com/legal/sub-processors, which contains a mechanism for Customer to subscribe to notifications of new sub-processors. If Customer subscribes to such notifications, Twilio will provide details of any change in sub-processors as soon as reasonably practicable. With respect to changes in infrastructure providers, Twilio will endeavor to give notice sixty (60) days prior to any change, but in any event will give notice no less than thirty (30) days prior to any such change. With -processors, Twilio will endeavor to give notice thirty (30) days prior to any change, but will give notice no less than ten (10) days prior to any such change. 7.4 Objection Right for new Sub-processors. Customer may object to Twilio's appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is in writing and based on reasonable grounds relating to data protection. In such event, the parties agree to discuss commercial reasonable alternative solutions in good faith. If the parties cannot reach a resolution within ninety (90) days, Customer may suspend or terminate the affected service in accordance with the termination provisions of the Agreement. Such termination will be without prejudice to any fees incurred by Customer prior to suspension or termination. If no objection has been raised prior to Twilio replacing or appointing a new sub-processor, Twilio will deem Customer to have authorized the new sub-processor. 7.5 Sub-processor Liability. Twilio will remain liable for any breach of this Addendum that is caused by an act, error or omission of its sub-processors. 8. Data Subject Rights. 8.1 Twilio Services. As part of the Twilio Services, Twilio provides Customer with a number of self-service features, including the ability to delete, obtain a copy of, or restrict use of Customer Content, which may be used by Customer to assist in complying with its obligations under Applicable Data Protection Law with respect to responding to requests from data subjects via the Twilio Services at no additional cost. In significant resources to that effort) to assist Customer in complying with its data protection obligations with respect to data subject rights under Applicable Data Protection Law. 8.2 SendGrid Services. Twilio will, taking into account the nature of the processing, provide reasonable assistance to Customer to the extent possible to enable Customer to respond to requests from a data subject seeking to exercise its rights under Applicable Data Protection Law with respect to Customer Content being processed via the SendGrid Services. 9. Impact Assessments and Consultations. Twilio will provide reasonable cooperation to Customer in ense only if such reasonable cooperation will require Twilio to assign significant resources to that effort) or consultations with regulatory authorities that may be required in accordance with Applicable Data Protection Law. 10. Return or Deletion of Customer Content. Twilio will, in accordance with Section 2 of Schedule 1 (Details of Processing), delete or return to Customer any Customer Content stored in the Services. 10.1 Extension of Addendum. Upon termination of the Agreement, Twilio may retain Customer Content in storage for the time periods set forth in Schedule 1 (Details of Processing), provided that Twilio will ensure that Customer Content is processed only as necessary for the Permitted Purposes, and Customer Content remains protected in accordance with the terms of the Agreement, this Addendum, and Applicable Data Protection Law. 10.2 Retention Required by Law. Notwithstanding anything to the contrary in this Section 10, Twilio may retain Customer Content or any portion of it if required by applicable law, provided that it remains protected in accordance with the terms of the Agreement, this Addendum, and Applicable Data Protection Law. IV. Security and Audits 11. Security 11.1 Security Measures. Twilio has implemented and will maintain the technical and organizational measures set out in the Security Controls to protect personal data from a Security Incident. Additional information about the technical and organizational security measures involving (a) the Twilio Services are described at https://www.twilio.com/security and (b) the SendGrid Services are described at https://sendgrid.com/policies/security. 11.2 Determination of Security Requirements. Customer acknowledges that the Services include certain features and functionalities that Customer may elect to use that impact the security of the data and availability of multi- within the SendGrid Services. Customer is responsible for reviewing the information Twilio makes available regarding its data security, including its audit reports, and making an independent including its obligations under Applicable Data Protection Law. Customer is further responsible for properly configuring the Services and using features and functionalities made available by Twilio to maintain appropriate security in light of the nature of the da Services. 11.3 Security Incident Notification. Twilio will provide notification of a Security Incident in the following manner: a. Twilio will, to the extent permitted by applicable law, notify Customer without undue delay, but in no event later than seventy- Incident impacting Customer Data of which Twilio is a processor; b. Twilio will, to the extent permitted and required by applicable law, notify Customer without undue delay of any Security Incident involving Customer Data of which Twilio is a controller; and Twilio will make reasonable efforts to identify and, to the extent such Security Incident is caused by a violation of the requirements of this Addendum by Twilio, remediate the cause of such Security Incident. Twilio will provide reasonable assistance to Customer in the event that Customer is required under Applicable Data Protection Law to notify a regulatory authority or any data subjects of a Security Incident. 12. Audits. obligations under Applicable Data Protection Law and this Addendum, insofar as Twilio is acting as a processor on behalf of Customer. with respect to its processing of Customer Content. Such audits are performed at least once annually at Audit Report certifications and/or standards for audit of the (a) Twilio Services can be found at https://www.twilio.com/security; and (b) SendGrid Services can be found at https://sendgrid.com/policies/security. Audit Report. Customer agrees that any audit rights granted by Applicable Data Protection Law (including, where applicable, Article 28(3) of the GDPR or Clauses 5(f) and 12(2) of the Standard Contractual Clauses) will be satisfied by these Audit Reports. To the ex Audit Report does not provide sufficient information or to the extent that Customer must respond to a regulatory authority audit, Customer agrees to a mutually agreed-upon audit plan with Twilio that: (a) ensures the use of an independent third party; (b) provides notice to Twilio in a timely fashion; (c) -current rates o more than once annually; (f) restricts its findings to only data relevant to Customer; and (g) obligates Customer, to the extent permitted by law, to keep confidential any information gathered that, by its nature, should be confidential. V. International Provisions primary processing facilities are in the United States of America. 14. Cross Border Data Transfer Mechanisms for Data Transfers. Services requires transfer of personal data out of the European Economic Area ("EEA"), Switzerland, or a jurisdiction set forth in Schedule 4, then Twilio will take such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. 14.1 Order of Precedence. In the event that the Services are covered by more than one transfer mechanism, the transfer of personal data will be subject to a single transfer mechanism in accordance (Twilio BCRs - Twilio Services); (b) the Standard Contractual Clauses as set forth in Section 14.3 (Standard Contractual Clauses); and, if neither (a) nor (b) is applicable, then (c) other applicable data transfer mechanisms permitted by Applicable Data Protection Law. 14.2 Twilio BCRs - Twilio Services. The parties agree that Twilio will process personal data in the Twilio at https://www.twilio.com/legal/binding-corporate-rules Twilio BCRs with respect to the Twilio Services, the Twilio BCRs will be the lawful transfer mechanism of Customer Account Data, Customer Content and Customer Usage Data from the EEA, Switzerland, or the United Kingdom to Twilio in the United States, or any other non-EEA Twilio entity subject to the binding corporate rules. For avoidance of doubt, the Twilio BCRs do not apply to the SendGrid Services. 14.3 Standard Contractual Clauses. This Addendum hereby incorporates by reference (a) the Standard Contractual clauses for data controller to data processor transfers approved by the European Commission in decision 2010/87/EU, provided that Appendices 1 and 2 of the Standard Contractual Clauses shall be deemed completed as set forth in Schedule 2 to this Addendum; and (b) the Standard Contractual Clauses for data controller to data controller transfers approved by the European Commission in decision 2004/915/EC, provided that Annex B of the Standard Contractual Clauses shall be deemed completed as set forth in Schedule 3 to this Addendum. The parties further agree that the Standard Contractual Clauses will apply to personal data that is transferred via the Services from the European Economic Area, the United Kingdom, and/or Switzerland to outside the European Economic Area, the United Kingdom, and Switzerland, either directly or via onward transfer, to any country or recipient: (i) not recognized by the European Commission (or, in the case of transfers from the UK or Switzerland, the competent authority for the UK or Switzerland) as providing an adequate level of protection for personal data and (ii) not covered by the Twilio BCRs. 15. Jurisdiction Specific Terms. To the extent Twilio processes personal data originating from and protected by Applicable Data Protection Law in one of the jurisdictions listed in Schedule 4, then the Jurisdiction Specific Terms apply in addition to the terms of this Addendum. In case of any conflict or ambiguity between the Jurisdiction Specific Terms and any other terms of this Addendum, the applicable Jurisdiction Specific Terms will take precedence. VI. Miscellaneous 16. Cooperation and Data Subject Rights. In the event that either party receives: (a) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable) or (b) any other correspondence, enquiry, or complaint received from a data subject, regulator or other third party, (collectively, "Correspondence") then, where such Correspondence relates to processing of Customer Account Data or Customer Usage Data conducted by the other party, it will promptly inform such other party and the parties agree to cooperate in good faith as necessary to respond to such Correspondence and fulfill their respective obligations under Applicable Data Protection Law. 17. Sensitive Data. Customer is responsible for ensuring that suitable safeguards are in place prior to any Sensitive Data via the Services. 18. Notification Cooperation. Customer acknowledges that Twilio, as a controller, may be required by Applicable Data Protection Law to notify the regulatory authority of Security Incidents involving Customer Usage Data. If the regulatory authority requires Twilio to notify impacted data subjects with of this requirement. Customer will provide reasonable assistance to Twilio to notify the impacted data subjects. 19. GDPR Penalties. Notwithstanding anything to the contrary in this Addendum or in the Agreement responsible for any GDPR fines issued or levied under Article 83 of the GDPR against the other party by a 20. Conflict. If there is any conflict between this Addendum and the Agreement and/or Privacy Policy, then the terms of this Addendum will control. Any claims brought in connection with this Addendum will be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement. 21. Failure to Perform. In the event that changes in law or regulation render performance of this Addendum impossible or commercially unreasonable, the Parties may renegotiate this Addendum in good faith. If renegotiation would not cure the impossibility, or the Parties cannot reach an agreement, 22. Updates. Twilio may update the terms of this Addendum from time to time; provided, however, Twilio will provide at least thirty (30) days prior written notice to Customer when an update is required as a result of (a) changes in Applicable Data Protection Law; (b) a merger, acquisition, or other similar transaction; or (c) the release of new products or services or material changes to any of the existing Services. The then-current terms of this Addendum are available at https://www.twilio.com/legal/data- protection-addendum. SCHEDULE 1 DETAILS OF PROCESSING 1. Nature and Purpose of the Processing. Twilio will process personal data as necessary to provide the for 1.1 Customer Content. Twilio will process Customer Content in accordance with Section 5 (Customer Instructions) of this Addendum. 1.2 Customer Account Data. Twilio will process Customer Account Data as a controller (a) in order to accounting and filing taxes; and (c) in order to detect, prevent, or investigate security incidents, fraud and other abuse and/or misuse of the Services. 1.3 Customer Usage Data. Twilio will process Customer Usage Data as a controller in order to carry out billing, audit, and compliance purposes; (b) to provide, optimize, and maintain the Services and platform and security; (c) to investigate fraud, spam, wrongful or unlawful use of the Services; and/or (d) as required by applicable law. 2. Duration of the Processing. 2.1 Customer Content. a. Twilio Services. Prior to the termination of the Agreement, Twilio will process stored Customer Content for the Permitted Purposes until Customer elects to delete such Customer Content via the Twilio Services. Prior to the termination of the Agreement, Customer agrees that it is solely responsible for deleting Customer Content via the Twilio Services. Upon termination of the Agreement, Twilio will (i) provide Customer thirty (30) days after the termination effective date to obtain a copy of any stored Customer Content via the Twilio Services; (ii) automatically delete any stored Customer Content thirty (30) days after the termination effective date; and (iii) automatically delete any stored Customer -up systems sixty (60) days after the termination effective date. Any Customer -up systems will be securely isolated and protected from any further processing, except as otherwise required by applicable law. b. SendGrid Services. Upon termination of the return to Customer the Customer Content (including copies) stored in the SendGrid Services and (ii) -up systems one (1) year after the termination effective date. 2.2 Customer Account Data. Twilio will process Customer Account Data as long as needed to provide the Account Data will be stored in accordance with the Privacy Policy. 2.3 Customer Usage Data. Upon termination of the Agreement, Twilio may retain, use, and disclose Customer Usage Data for the purposes set forth in Section 1.3 of this Schedule 1, subject to the confidentiality obligations set forth in the Agreement. Twilio will anonymize or delete Customer Usage Data when Twilio no longer requires it for the purposes set forth in Section 1.3 of this Schedule 1. 3. Categories of Data Subjects. 3.1 Customer Content. Customer Twilio. ers. 4. Type of Personal Data. Twilio processes personal data contained in Customer Account Data, Customer Content, and Customer Usage Data as defined in the Addendum. SCHEDULE 2 APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix 1. Data exporter The data exporter is the Customer and the user of the Services. Data importer The data importer is Twilio Inc, a provider of (a) business communications services that enable communications features and capabilities to be embedded into web, desktop and mobile software applications; and (b) cloud-based transactional and marketing email delivery, management and analytics services. Data subjects The personal data transferred concern the following categories of data subjects: -users. The data importer will receive any personal data in the form of Customer Content that the data exporter instructs it to process through its cloud communications products and services. The precise personal data that the data exporter will transfer to the data importer is necessarily determined and controlled solely by the data exporter. Categories of data The personal data transferred concern the following categories of data (please specify): Customer Content: As defined in Section 1 (Definitions) of this Addendum. Special categories of data (if appropriate) The personal data transferred concern the following special categories of data (please specify): Twilio does not intentionally collect or process any special categories of data in the provision of its products or services. However, special categories of data may from time to time be processed through the Services where the data exporter or its end users choose to include this type of data within the communications it transmits using the Services. As such, the data exporter is solely responsible for ensuring the legality of any special categories of data it or its end users choose to process using the Services. Processing operations The personal data transferred will be subject to the following basic processing activities (please specify): For the Twilio Services, the provision of programmable communication products and services, primarily offered in the form of application programming interfaces (APIs), on behalf of the data exporter, -switched telephone network (PSTN) or by way of other communications networks. For the SendGrid Services, the provision of products and services which allow the sending and delivering email communications on behalf of the data exporter to its recipients. Twilio will also provide the data exporter with analytic reports concerning the email communications it sends on the data exporter's behalf. APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES This Appendix 2 forms part of the Clauses and must be completed and signed by the parties. Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or documentation/legislation attached): See Security Controls. SCHEDULE 3 ANNEX B TO THE STANDARD CONTRACTUAL CLAUSES DESCRIPTION OF THE TRANSFER This Annex B forms part of the Standard Contractual Clauses and must be completed and signed by the parties. Data Subjects The personal data transferred concern the following categories of data subjects: Purposes of the Transfer(s) The transfer is made for the following purposes: The provision of cloud communication services. and For provision of a portion of the Twilio Services under which data exporter adds an additional factor for 2 Factor Authentication Services Categories of data The personal data transferred concern the following categories of data: 1.!Personal data transferred by data exporter to data importer to provide 2 Factor Authentication Services, namely data subjects' telephone numbers and email addresses and any other personal data provided by the data exporter and/or needed for authentication purposes. 2.!Customer Account Data: As defined in Section 1 (Definitions) of this Addendum. 3.!Customer Usage Data: As defined in Section 1 (Definitions) of this Addendum. Recipients The personal data transferred may only be disclosed to the following recipients or categories of recipients: !Employees, agents, affiliates, advisors and independent contractors of data importer with a reasonable business purpose for needing such personal data !Vendors of data importer that, in their performance of their obligations to data importer, must process such personal data acting on behalf of and according to instructions from data importer. !Any person (natural or legal) or organization to whom data importer may be required by applicable law or regulation to disclose personal data, including law enforcement authorities, central and local government. Sensitive data N/A Data protection registration of the data exporter ________________ SCHEDULE 4 JURISDICTION SPECIFIC TERMS 1.Australia: Australian Privacy Act (1988). Protection Law. Protection Law. 2. Brazil: o de Dados (LGPD). incident that may result in any relevant risk or damage to the data subjects. 3. California: des the California Consumer Privacy Act (CCPA). Protection Law and, for clarity, includes any Personal Information contained within Customer Account Data, Customer Content, and Customer Usage Data. Law. Any data subject rights, as described in Section 8 (Data Subject Rights) of this Addendum, apply to Consumer rights. In regards to data subject requests, Twilio can only verify a request from Customer and 3.5 Protection Law. 3.6 Twilio will process, retain, use, and disclose personal data only as necessary to provide the Services under the Agreement, which constitutes a business purpose. Twilio agrees not to (a) sell (as defined by viding the Twilio understands its obligations under the Applicable Data Protection Law and will comply with them. 3.7 Twilio certifies that its sub-processors, as described in Section 7 (Sub-processing) of this Addendum, are Service Providers under Applicable Data Protection Law, with whom Twilio has entered into a written contract that includes terms substantially similar to this Addendum. Twilio conducts appropriate due diligence on its sub-processors. 3.8 Twilio will implement and maintain reasonable security procedures and practices appropriate to the nature of the personal data it processes as set forth in Section 11 (Security) of this Addendum. 4. Canada: Protection and Electronic Documents Act (PIPEDA). -processors, as described in Section 7 (Sub-processing) of this Addendum, are third parties under Applicable Data Protection Law, with whom Twilio has entered into a written contract that includes terms substantially similar to this Addendum. Twilio has conducted appropriate due diligence on its sub-processors. 4.3. Twilio will implement technical and organizational measures as set forth in Section 11 (Security) of this Addendum. 5. Israel: Protection Law. 5.4 Twilio will require that any personnel authorized to process Customer Content comply with the principle of data secrecy and have been duly instructed about Applicable Data Protection Law. Such personnel sign confidentiality agreements with Twilio in accordance with Section 6 (Confidentiality) of this Addendum. 5.5 Twilio must take sufficient steps to ensure the privacy of data subjects by implementing and maintaining the security measures as specified in Section 11 (Security) of this Addendum and complying with the terms of the Agreement. 5.6 Twilio must ensure that the personal data will not be transferred to a sub-processor unless such sub- processor has executed an agreement with Twilio pursuant to Section 7.1 (Sub-processors) of this Addendum. 6. Japan: ion of Personal Information (APPI). Protection Law. Protection Law. As a Business Operator, Twilio is responsible for the handling of personal data in its possession. the handling of personal data in whole or Protection Law. As a trustee, Twilio will ensure that the use of the entrusted personal data is securely controlled. 7. Mexico: the Federal Law for the Protection of Personal Data Held by Private Parties and its Regulations (FLPPIPPE). 7.2. When acting as a processor, Twilio will: er Instructions) of this Addendum; (b) process personal data only to the extent necessary to provide the Services; (c) implement security measures in accordance with Applicable Data Protection Law and Section 11 (Security) of this Addendum; (d) keep confidentiality regarding the personal data processed in accordance with the Agreement; (e) delete all personal data upon termination of the Agreement in accordance with Section 10 (Return or Deletion of Customer Content) of this Addendum; and (f) only transfer personal data to sub-processors in accordance with Section 7 (Sub-processing) of this Addendum. 8. Singapore: (PDPA). 8.2 Twilio will process personal data to a standard of protection in accordance with the PDPA by implementing adequate technical and organizational measures as set forth in Section 11 (Security) of this Addendum and complying with the terms of the Agreement. 9. United Kingdom: 9.1 References in this Addendum to GDPR will to that extent be deemed to be references to the corresponding laws of the United Kingdom (including the UK GDPR and Data Protection Act 2018) 9.2 The Standard Contractual Clauses will also apply to Customer in the United Kingdom as data exporter and to Twilio as data importer for transfers of personal data to countries that are not deemed to have an adequate level of data protection under the United Kingdom's Applicable Data Protection Law. Appendix W GDPR For more information about Twilio and SendGrid's compliance with the GDPR, please see our GDPR resources. Appendix X Twilio Privacy Statement Effective Date May 25, 2018, updated on January 8, 2021 (View the prior version of our privacy statement here.) Twilio is a cloud communications platform that provides software developers with building blocks to add communications to web and mobile applications or manage email applications (such as through our SendGrid products and services). Interested in how Twilio processes your data as a user of the Authy Mobile or Desktop App? See the Authy App Privacy Notice.Looking for how Twilio processes your data as a user of the Frontline Mobile App? Check out the Frontline App Privacy Notice. ick here to see what specific privacy controls apply to our SendGrid products and services. ndle your data about how we process personal information in connection with your use of our products and services, including our website. We want to enable you to make informed decisions about your personal platform. We also want to provide you with relevant information to help your end users make informed decisions about their personal rivacy Team wishes it were otherwise, we know that most API docs and SendGrid Documentation about personal information processing to give you information to help you build in a smarter, more privacy-aware way. -specific API docs, but you like to know more about how to exercise your rights. You can contact our Privacy Team in the Office of the Data Protection Officer by either emailing us at privacy@twilio.com or, by writing to us at: WORLDWIDE HEADQUARTERS 375 Beale Street, Suite 300, San Francisco, CA 94105 EUROPEAN HEADQUARTERS 25-28 North Wall Quay, Dublin 1, Ireland Table of Contents ! !How Twilio Processes Your Personal Information ! ! !Transfers of Personal Information Out of the EEA and Switzerland !SendGrid Services !Automated Decision Making !Handling disputes relating to our data protection practices !How We Secure Personal Information !Other Information You May Find Useful Twilio processes two broad categories of personal information when you use our products and services: ! information that we refer to as Customer Account Data, and !The personal information of your end users who use or interact with your application that this category contains both your Customer Usage Data (e.g., communications metadata) and your Customer Content (e.g., the contents of communications). Twilio processes these categories of personal information differently because the direct relationship we have with you, our customer, is different than the indirect relationship we have with your end users. How Twilio Processes Your Personal Information Data protection laws and privacy laws in certain jurisdictions, like the European Economic Area (EEA), on. A controller decides why and how to process personal information. instructions. When Twilio processes your Customer Account Data, the Twilio entity with whom you are contracting is acting as a controller. Broadly speaking, we use Customer Account Data to further our legitimate interests to: ! product and services, !manage our relationship with you and other customers, !carry out core business operations such as accounting, filing taxes, and fulfilling regulatory obligations and !help detect, prevent, or investigate security incidents, fraud and other abuse and/or misuse of our products and services. What Personal Information Twilio collects give you a brief summary of the categories of personal information that might be found in the Customer Account Data and Customer Usage Data that we collect from our customers and their end users, so you can know We collect and process your personal information: !When you visit a Twilio public-facing website like twilio.com, twilio.org, authy.com, or sendgrid.com, sign up for a Twilio event, like SIGNAL, or make a request to receive information about Twilio or our products, like a Twilio whitepaper or a newsletter; !When you contact our Sales Team or Customer Support Team; and !When you sign up for a Twilio, Authy, or SendGrid account and use our products and services. We call this personal information Customer Account Data. We also collect Customer Usage Data from you when you send or receive communications through your use of our services. This data might take different forms, and we might use it for different purposes read on for more information. Learn More What Customer Account Data Twilio Processes When You Visit Our Website, Sign Up for a Twilio Event, or Make a Request for Information About Twilio and Why When you visit our website, sign up for a Twilio event or request more information about Twilio, we collect information automatically using tracking technologies, like cookies, and through web forms where you type in your information. We collect this information to provide you with what you request through the web form, to learn more about who is interested in our products and services, and to improve navigation experience on our pages. Learn More What Customer Account Data Twilio Processes When You Communicate with Our Sales or Customer Support Teams and Why You may share personal information, like your contact information, with a member of our Sales or Customer Support Team when you communicate with them. We keep a record of this interaction. Learn More What Customer Account Data Twilio Processes When You Sign Up for and Log Into a Twilio Account and Why When you sign up for an account with us, we ask for certain information like your contact details and billing information so we can communicate with you and so you can pay for our products and services. We also collect some information automatically, like your IP address, when you log in to your account or when your software application built on Twilio makes requests to our APIs. We use this to understand who is using our services and how, and to detect, prevent and investigate fraud, abuse, or security incidents. Learn More Other Customer Account Data We Collect and Why We may collect information about you, as our customer, from publicly-available sources so we can understand our customer base better. Learn More How Long We Store Your Customer Account Data Twilio will store your Customer Account Data as long as needed to provide you with our services and to operate our business. If you ask Twilio to delete specific personal information from your Customer request unless deleting that information prevents us from carrying out necessary business functions, like billing for our services, calculating taxes, or conducting required audits. Learn More How To Make Choices About Your Customer Account Data You can make various choices about your Customer Account Data through the account portal, such as accessing it, correcting it, deleting it, or updating your choices about how it is used, when you log into your Twilio account or through the marketing preferences center. Any other requests about your data you cannot make through these self-service tools, you can request by emailing privacy@twilio.com or contacting Customer Support. Learn More California Consumer Access and Deletion Rights For those customers that would like more information about our use of Customer Account Data or Customer Usage Data, you have the ability to request: !that we provide details about the categories of personal information that we collect about you, including how we collect and share it; !that we provide you access to the personal information we collect about you; and !that we delete the personal information we have about you. Please be aware that when you ask us for these things, we will take steps to verify that you are authorized to make the request. Learn More !Communications- numbers for number- communications, IP addresses for IP-based communications, device status (indicating whether a device is available for messaging), or device tokens for push notifications, show up in our systems when you use or intend to use this information to contact your end user through use of our products and services. ! ! you (or your We call the information in the first two bullets above Customer Usage Data. The information in the third bullet is what we refer to as Customer Content. As noted above, data protection law (including privacy law) in certain jurisdictions, like the EEA, Customer Content, we generally act as a processor. When we process Customer Usage Data, we act as a processor in many respects, but we may act as a controller in others. For example, we may need to use certain Customer Usage Data for the legitimate interests of billing, reconciling invoices with telecommunications carriers, and in the context of troubleshooting and detecting problems with the network. What Customer Usage Data and Customer Content Twilio Processes and Why We use Customer Usage Data and Customer Content to provide services to you and to carry out necessary functions of our business as a communications service provider. We do not sell your end formation with third parties for those Learn More How Long Do We Store Customer Usage Data and Customer Content and Exercising Choices About End User Personal Information Details regarding how long your end user personal information may be stored on Twilio systems and how to delete, access, or exercise other choices about end user data will depend on which Twilio products and services you are using and how you are using them. For that reason, our API docs for each documentation, are the best place to find more detailed information about managing end user data collected and stored in connection with your use of our products and services, as well as the particular data retention periods for your use case. Learn More We do not sell or allow your Customer Account Data to be used by third parties for their own marketing purposes, unless you ask us to do this or give us your consent to do this. Further, we do not sell your end purposes, unless you instruct us to do so. You can read more in our CCPA Notice. Learn More Transfers of Personal Information Out of the EEA and Switzerland When you use our account portal, or our other products and services, personal information of you and your end users processed by Twilio may be transferred to the United States, where our primary processing facilities are located, and possibly to other countries where we or our service providers operate. These transfers will often be made in connection with routing your communications in the most efficient way. Twilio employs appropriate safeguards for cross-border transfers of personal data, as required by applicable local law, including Binding Corporate Rules and Standard Contractual Clauses. Learn More SendGrid Services SendGrid services are not currently covered Binding Corporate Rules, which means that we rely on Standard Contractual Clauses (which you can find in our Data Protection Addendum) for any cross-border data transfers relating to the SendGrid services. However, even where SendGrid services are not covered by our Binding Corporate Rules, we are committed to providing a high level of data protection for our SendGrid customers. There are a few other elements that are specific to the SendGrid services, and you should read on for more information. Learn More Automated Decision Making Twilio may use automated decision making using a variety of signals derived from account activity to help identify and suspend accounts sending spam or engaged in other abusive or fraudulent activity. Holders of accounts suspended under these circumstances are notified of the suspension and given an opportunity to request human review of the suspension decision. Handling disputes relating to our data protection practices We hope we can resolve any disputes relating to our data protection practices between us. You can raise your concern or dispute by emailing our Privacy Team at privacy@twilio.com or by writing to us at: Twilio Inc., 375 Beale Street, Suite 300, San Francisco, CA 94105 (our worldwide headquarters) or Twilio Ireland Limited, 25-28 North Wall Quay, Dublin 1, Ireland (our EEA headquarters). For individuals in the EEA, you have additional rights to make a complaint to a competent data protection authority or commence proceedings in a court of competent jurisdiction in accordance with applicable data protection laws. Learn More How We Secure Personal Information We use appropriate technical and organizational measures to protect the security of your personal information both online and offline. These measures vary based on the sensitivity of the personal information we collect, process and store and the current state of technology. We also take measures to ensure service providers that process personal data on our behalf also have appropriate security controls in place. Learn More Other Information You May Find Useful ta or protected health information, how we handle do-not-track signals, what to expect if we make changes to our notice, and the legal bases for processing personal information. Appendix Y Note: Twilio does not rely on Privacy Shield for cross-border data transfers. However, we continue to comply with the framework, including its dispute resolution process. Please read our statement for information about how we comply with the Privacy Shield framework. Twilio has certified with the EUU.S. Privacy Shield Framework and the SwissU.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of "personal data" (as defined under the Privacy Shield principles) transferred from the European Union and the United Kingdom, and/or Switzerland to the United States, respectively. Twilio has certified that it adheres to the Privacy Shield Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement for such personal data. To learn more about the Privacy Shield, please visit https://www.privacyshield.gov/list. As required under the principles, when Twilio receives information under the Privacy Shield and then transfers it to a third-party service provider acting as an vacy Shield if both (i) the agent processes the information in a manner inconsistent with the Privacy Shield and (ii) Twilio is responsible for the event giving rise to the damage. ncluding questions related to the Privacy Shield, you may contact us via email at privacy@twilio.com, or by mail at either of the addresses below, and we will work with you to resolve your issue: Twilio Inc. 375 Beale Street, Suite 300 San Francisco, CA 94105 Twilio Ireland Limited 25-28 North Wall Quay Dublin 1, Ireland If you are a resident of the European Union or Switzerland and are dissatisfied with the manner in which we have addressed your concerns about our privacy practices, you may seek further assistance, at no cost to you, from our designated Privacy Shield independent recourse mechanism: American Arbitration Association/International Centre for Dispute Resolution Residents of the European Union or Switzerland may elect to arbitrate unresolved complaints but prior to initiating such arbitration, you must: (1) contact Twilio and afford us the opportunity to resolve the issue; (2) seek assistance from Twil contact the U.S. Department of Commerce (either directly or through a European Data Protection Authority or the Swiss Federal Data Protection and Information Commissioner) and afford the Department of Commerce time to attempt to resolve the issue. Each party shall be responsible for its impose individual-specific, non-monetary, equitable relief necessary to remedy any violation of the Privacy Shield Principles with respect to the individual. Twilio is subject to the investigatory and enforcement powers of the U.S. Federal Trade Commission (FTC). In addition to the rights granted to Twilio users to access, modify, and delete data we have collected from those users, some international users (including those whose information we collect under the Privacy Shield) have certain legal rights to access certain information we hold about them and to obtain its deletion. To exercise those rights, these users may contact us at privacy@twilio.com with their request. Appendix Z Twilio Sub-Processors Twilio uses certain sub-processors to assist in providing -processor is a third party data processor engaged by Twilio who agrees to receive personal data from Twilio intended for processing activities to be carried out (i) on behalf of Twilio customers; (ii) in accordance with customer instructions as communicated by Twilio; and (iii) in accordance with the terms of a written contract between Twilio and the sub-processor. Twilio maintains an up-to-date list of the names and locations of all sub-processors. This list is below, or you can obtain a copy by contacting privacy@twilio.com. Twilio customers may subscribe to notifications of sub-processor changes to receive updates. Sub-Processor List Types of data transferred Purpose for the data transfer Location Provision of communication products and services, including transmittal to or from customer software applications from or to Personal data contained the publicly-switched telephone in communications network (PSTN) or other specified AWS customers send or USA origination and termination points. receive Storage. services. Provides text to speech capabilities for Programmable Voice customers using Amazon Polly. Personal data contained Provides human annotation of Storage: USA, in voice recordings voice recordings for customers Australia Appen Butler Hill customers process via the who have enabled the feature on Access: Philippines opt-in Twilio AI Services. supported products. Types of data transferred Purpose for the data transfer Location Personal data contained in Voice communications customers instruct Provides connectivity services to DVELP/Sabio UK, EU, USA Google to process via the Flex Partner CCAI products Personal data contained Provides data analytics in communications GoodData functionality for customers who customers send or USA Corporation have enabled the feature in Flex Workforce Optimization. services. Personal data contained Provides speech recognition in communications functionality for customers who Google customers send or USA have enabled the feature on supported products. services. Provides the Flex Partner CCAI Storage: As Personal data customers products in accordance with and Selected by instruct Google to subject to the Google Cloud Google Customer process via the Flex Platform Terms of Service and the Partner CCAI products Google Dialogflow Service Level Access: USA Agreement Routes outgoing email through the IBM Cloud Personal data contained most efficient local caching servers Services (f/k/a in communications in order to increase speed for Softlayer customers send or USA customers outside the United Technologies, receive through the States who are sending email Inc.) SendGrid services. through the SendGrid services. Types of data transferred Purpose for the data transfer Location Storage: USA Provides human annotation of text Personal data contained Accessing text and files and human transcription of in voice recordings audio files for iMerit audio files for customers who have customers process via the annotation and enabled the feature on supported opt-in Twilio AI Services. transcription: products. India, Bhutan Personal data contained Provides human annotation of Storage: USA in voice recordings voice recordings for customers TranscribeMe customers process via the who have enabled the feature on Access: Philippines opt-in Twilio AI Services. supported products. Personal data contained Provides transcription services for in communications customers who have enabled VoiceBase customers send or USA transcriptions on supported products. services. Appendix AA Frontline Privacy Statement Effective Date January 5, 2021 We appreciate you using Twilio Frontline. Entrusting us with your personal data is a serious responsibility, and we want you to know how we approach privacy and data protection. This Frontline Privacy Statement describes: !The types of information Twilio may collect or that you may provide when you download, install, access, or use the Frontline App or the Frontline Services. !How Twilio shares that information with others. !collecting, using, maintaining, protecting, and disclosing that information. ! This Frontline Privacy Statement is an addendum to, supplements, and incorporates the terms of the Twilio Privacy Statement practices, please refer there. This Frontline Privacy Statement applies only to information Twilio collects in: !The Frontline App; !Conjunction with the use of the Frontline Services; and !Email, text, and other electronic communications sent through or in connection with the Frontline App or Frontline Services. This Frontline Privacy Statement does not apply to information that Twilio collects offline or via any other Services, apps, or websites, including websites you may access through the Frontline App; or information you provide to, or information collected by, any third party. Twil these other third parties, have their own privacy policies, which we encourage you to read before providing information on or through them. Unless specifically defined, terms used throughout this Frontline Privacy Statement have the same definitions as those given in the Twilio Terms of Service, the Twilio Privacy Statement, and the Twilio Frontline Terms of Service Information we collect Categories of data s: ! information that we refer to as Customer Account Data, and ! with and commu this category contains both your Customer Usage Data (e.g., communications metadata) and your Customer Content (e.g., the contents of communications). You can always read more about how Twilio collects and processes personal information in the Twilio Privacy Statement certain information from and about Twili from users when they provide it to us, and automatically when a user uses the Frontline App or Frontline Services. Twilio uses this information to identify you as you use the Frontline Services, so we can provide the Frontline Services to you. Depending on your interactions with us, we might collect the following categories of personal information, and for the following reasons: !We collect Identifiers, like your name and contact information (Customer Account Data), when you sign up for or use the Frontline Services and to do things like allow you to use our products (including the Frontline App), verify your identity, and communicate with you. These include unique device identifiers as you use the Frontline App. !We collect Commercial information when we keep track of the Frontline Services that you purchase from us and our communications history about the Frontline Services. !We collect Financial information, such as your payment information, when you pay for the Frontline Services. !We collect Internet and other electronic activity information, such as communications metadata, as you use the Frontline Services. This metadata may be information about how you interact with our websites and the information on them; what features you use on the Frontline Services; or it may be your Customer Usage Data as you send communications over the Frontline Services. !We collect Geolocation information when you use the Frontline Services such as your IP address for analytics purposes. !We collect Professional or employment information, such as your company or employer or your role at your company. !If you use other Twilio services or products, we may collect additional information; please see the Twilio Privacy Statement to see how Twilio collects and uses personal data in general. In addition, as a processor and a service provider, we process Customer Content the content of communications that may include personal information from any of those categories, plus others. Connecting to Frontline To use the Frontline App, your users must login using a third party account, i.e., your Single Sign-On provider. The authentication of your users login details is handled by that third party and we only collect the information your users expressly agree to share with us at the time they give permission to link their Frontline account with the third party account. We only gather the information you give us access to, and we only use it for the purposes for which you have provided it to us, as you have authorized in the Twilio Terms of Service, the Twilio Privacy Statement, the Twilio Frontline Terms of Service, and in this Frontline Privacy Statement, as applicable. How we use the information we collect Twilio Frontline uses personal information, including Customer Usage Data, Customer Account Data, and Customer Content, as necessary to perform and provide the Frontline Services you request. This includes performing the necessary functions of our business as a service provider, as described in the Twilio Privacy Statement. For clarity: !We may use your Customer Account Data to manage your account; to carry out our core business functions such as billing and account maintenance; and to detect, prevent, or investigate security incidents, fraud and other abuse or misuse of the Frontline Services. !We may use your Customer Usage Data to assist you with debugging or troubleshooting. We may also use it in connection with detecting, investigating, and preventing security incidents; detecting and preventing spam or fraudulent activity; and detecting and preventing network exploits and abuse. It may also be anonymized, as allowed by law, and we may use data that can no longer identify you or relate to you for our legitimate business needs. !We only use your Customer Content as necessary to provide the Frontline Services (which may include investigating security incidents and preventing spam or fraudulent activity, and detecting and preventing network exploits and abuse); as necessary to comply with applicable law; and as you instruct. These instructions may take the form of commands sent via the Frontline App. !We do not sell or allow your Customer Account Data to be used by third parties for their own marketing purposes, unless you ask us to do this or give us your consent; and we will not retain, use, or disclose your personal information for any commercial purpose; and we will not retain, use, or disclose your personal information outside of the scope of the Agreement we have with you. You can see our CCPA Notice for more information. Sharing the information we collect We do not disclose personal information outside Twilio Frontline, except as described in this section. As mentioned above, we do not sell or allow your Customer Account Data to be used by third parties for their own marketing purposes, unless you ask us to do this or give us your consent to do this. Further, marketing or other purposes, unless you instruct us to do so. There are a few scenarios in which Twilio Frontline may share personal information: !We may share personal information with your consent, to perform services you have requested. !We may share personal information to third-party service providers or consultants. Twilio engages certain third-party service providers to carry out certain data processing functions on our behalf. These providers are limited to only accessing or using this data to provide services to us and must provide reasonable assurances they will appropriately safeguard the data. You may learn more by reading the Twilio Privacy Statement. !We may share Customer Content with sub-processors who assist in providing the Twilio services, like our infrastructure provider, or as necessary to provide optional functionality like transcriptions. An up-to-date list of sub-processors for the Twilio Services is located here. ! group of companies, such as with a subsidiary of Twilio Inc. We and our subsidiaries will only use the information as described in this notice. ! believe that disclosure is compelled by applicable law, regulation, legal process, or a government request (including to meet national security, emergency services, or law enforcement requirements), (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services and products, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury. If Twilio is required by law to disclose any personal information of you or any of your users, we will notify you of the disclosure requirement, unless prohibited by law. Further, we object to requests we do not believe were issued properly. You can read more in our Law Enforcement Guidelines. !If Twilio goes through a corporate sale, merger, reorganization, dissolution or similar event, data we gather from you may be part of the assets transferred or shared in connection with the due diligence for any such transaction. In that situation, and that situation only, we might transfer your data in a way that constitutes a sale under applicable law. If we do, w ahead of time, and any acquirer or successor of Twilio may continue to process data consistent with this notice. !We might also share data with third parties if the data has been de-identified or aggregated in a way so it cannot be used to identify you or your users. !Identifiers !Commercial information !Financial information !Internet or other electronic activity information !Geolocation information !Professional or employment information the Twilio Privacy Statement (in other words, this may include telephony operators, communications providers, and so on). Transfers of Personal Information When you use the Frontline Services, personal information of you and your users processed by Twilio may be transferred to the United States, where our primary processing facilities are located, and possibly to other countries where we or our service providers operate. Twilio employs appropriate safeguards for cross-border transfers of personal data, as required by applicable local law, including Binding Corporate Rules and Standard Contractual Clauses. of personal information between Twilio group companies in the European Union and Twilio group Authorities and are a commitment by Twilio to adequately protect personal information that Twilio processes regardless of where the information res processor policies here. Please see the Twilio Privacy Statement for information about our dispute resolution process. Securing personal information Twilio Frontline takes appropriate technical and organizational measures to protect the security of your and your sensitivity of the personal information we collect, process and store and the current state of technology. We also take measures to ensure service providers that process personal data on our behalf also have appropriate security controls in place. No method of transmission, or method of electronic storage, is unauthorized access, hacking, data loss or a data breach will never occur. Your choices about your Customer Account Data Twilio will store your Customer Account Data as long as needed to provide you with the Frontline Services and to operate our business. If you ask Twilio to delete specific personal information from your Customer Account Data (see in the Twilio Privacy Statement), we will honor this request unless deleting that information prevents us from carrying out necessary business functions, like billing for our services, calculating taxes, or conducting required audits. You can make various choices about your Customer Account Data through the account portal, such as accessing it, correcting it, deleting it, or updating your choices about how it is used, when you log into your Twilio account or through the marketing preferences center. Any other requests about your data you cannot make through these self-service tools, you can request by emailing privacy@twilio.com or contacting Customer Support. For instructions on how to request closure or deletion of your Twilio account, please see in the Twilio Privacy Statement. You can choose not to receive promotional emails from Twilio by following the unsubscribe/opt-out instructions in those emails. You can also opt-out by contacting Customer Support. Please note that even if you opt out of promotional communications, we may still send you non-promotional messages relating to things like updates to our terms of service or privacy notices, security alerts, and other notices relating to your access to or use of our products and services. Your choices about your Customer Usage Data and Customer Content information may be stored on Twilio systems and how services you are using and how you are using them. For that reason, our API docs for each of our collected and stored in connection with your use of the Frontline Services. As a Twilio customer, if the Twilio product or service you use enables you to store records of your usage on Twilio, including personal information contained within those records, and you choose to do so, then Twilio will retain these records for as long you instruct. In some cases, use of extended storage may cost more. If you later instruct us to delete those records, we will do so. Please note that it may take up to 30 days for the data to be completely removed from all systems. In some cases, a copy of those records, including the personal information contained in them, may nonetheless be retained to carry out necessary functions like billing, invoice reconciliation, troubleshooting, and detecting, preventing, and investigating spam, fraudulent activity, and network exploits and abuse. Sometimes legal matters arise that also require us to preserve records, including those containing personal information. These matters include litigation, law enforcement requests, or government investigations. If we have to do this, we will delete the impacted records when no longer legally obligated to retain them. We may, however, retain or use records after they have been anonymized, if the law allows. California Consumer Access and Deletion Rights For those customers that would like more information about our use of Customer Account Data or Customer Usage Data, you have the ability to request: !that we provide details about the categories of personal information that we collect about you, including how we collect and share it; !that we provide you access to the personal information we collect about you; and !that we delete the personal information we have about you. Please be aware that when you ask us for these things, we will take steps to verify that you are authorized to make the request. For more information on California consumer access and deletion rights, please see in the Twilio Privacy Statement. Changes to this Frontline Privacy Statement as on the Twilio website homepage, account portal sign- a Twilio Frontline customer. We will comply with applicable law with respect to any changes we make to this notice and seek your consent to any material changes if this is required by applicable law. Contacting Twilio Frontline If you need help with Twilio Frontline, please contact Frontline Support at frontline@twilio.com. Questions regarding this Frontline Privacy Statement, the Twilio Privacy Statement information practices should be directed to privacy@twilio.com mailing addresses, please see the Twilio Privacy Statement. Appendix AB Twilio Referral Program Terms and Conditions Twilio ("we," "us" the "Company") offers you the opportunity to earn rewards by referring friends to try our Upgraded Twilio Service (The "Upgraded Service"). Your participation in the Twilio Referral Program ("Twilio Referral Program" or "Program") can earn you credits to use in conjunction with Twilio Services, and may also get you additional rewards. We reserve the right to terminate the Program at any time for any reason. The Program is administered by Twilio, which may, outsource certain elements of administration to third parties (collectively "Administrator"). These terms ("Terms") apply to a user's participation in the Program. By participating in the Program, users agree to use the Program as outlined herein, and consistent with any other terms we may apply to the Program. If you do not agree to these Terms in their entirety, then you cannot register and participate in the Program. Users also cannot where in so doing, they would violate any applicable law or regulations. Eligibility This Program is void where such referral programs are prohibited. Users who refer others to the program are "Referrers"; those who are referred are "Referred Customers." Referrers are may be eligible to receive "Credits" for every qualified referral. Referrers must speak and read English, be legally able to participate in the Program, and must be 1) at least the age of majority where they reside, 2) have an existing, valid Twilio user account, and 3) are otherwise in good standing. When registering for the Program, Referrers must use the same email address that is registered with their existing Twilio user account. Sorry, no company accounts. Twilio reserves the right to determine if a Referrer's Twilio user account is valid based on criteria that includes, but is not limited to, Twilio account activity and ownership, incorporation status, and business affiliation of the user's registered Twilio email address domain. Participation in the Program represents an ongoing relationship with you, for privacy purposes. So long as you remain in the Program, and you have unused Credits, you will be considered an active member of the Program and of the Twilio Community. P details on your privacy rights. Companies and employees of Twilio Entities or their subsidiaries, affiliates or promotional agencies, including immediate family and household members, are not eligible. How It Works To participate, once you have created your Twilio account, visit www.twilio.com/console and follow the on-screen instructions to start referring. You will be provided a link which you can share with your friends and colleagues as much as you want. If a user uses your personal link and signs up and upgrades your account, each of you will receive a credit ("Credit") worth $10.00 US, to use for designated Twilio products and services. There is a limit of 100 unique Credits per calendar year that a Referrer may receive, and Credits may only be used for designated Twilio products and services and may never be redeemed for cash. Special Promotions From time to time, Referrers may be offered special promotions ("Special Promotion"), and special links ("Personal Bonus Link") to use. These Special Promotions may be offered to some, but not all Users, depending upon your Credit status, your geographic location, or for other reasons. Such Special Promotions are for a limited time and will give Referrers (and in some cases, Referred Customers) additional perks and rewards. Additional terms, including expiration dates for any Special Promotion will be provided with the Special Promotion. During Special Promotions, Referrers may use either their Personal Link, or their Personal Bonus Link, and will receive Credit based upon the specific link used. Sorry, during any Special Promotion, the Referrer will only receive the identified credit outlined Special Promotion only if the Referred User completes the task prior to the end date of the Special Promotion period. Qualified Referrals Upon signing up for the Program, Referrers will be provided with a unique referral link ("Personal Link") that allows Referrers to receive Credit. Each Referrer will be able to check his/her status on referrals by logging in to his/her/their account and checking the Referral Status. Referrers will also be provided with a unique and personal Twilio "Referral Status" page to check page or account to check the status of his/her Qualified Referrals and to manage his/her account. Personal Links will be issued only to individuals. An individual must use their Personal Link to participate in the program but no purchase is required. Referrers must respect the spirit of the Program by not engaging in spamming or other unfair or otherwise problematic practices, including creating fake accounts or harassing potential referral sources. Conditions for Receiving Credit Credit will be awarded for Qualified Referrals who meet the following conditions: 1.!The Referred Customer must use the Personal Link from a Referrer in good standing with Twilio. 2.!If a Referred Customer receives more than one Personal Link, Twilio will provide the Credit to the person whose Personal Link is used to complete the Twilio registration process regardless of when the Personal Links were sent. If a Referred Customer registers for the Upgraded Service using any other method, the registration will not count as a Qualified Referral and Referrer will not earn Credit; 3.!The Referred Customer may not combine the link with any other monetary offer. 4.!The Referred Customer may not receive a credit back for the Upgraded Service for up to 1 month. 5.!The Referred Customer must not be registered with the Upgraded Service, and was not previously registered with the Service under any email address or alias for at least 12 months; 6.!The Referred Customer must be eligible to create a Twilio account and otherwise be qualified. 7.!The Referred Customer must register for the Upgraded Service using a valid and current email address that has not been used to register for the Upgraded Service within the last 12 months. How Credits Work Referrers are allowed up to 100 unique Credits (100 unique Qualified Referrals). Credit are subject to verification and will generally be awarded within 60 days of verification. Twilio Entities may withhold a Credit if it reasonably believes additional verification is required. Twilio may also withhold or invalidate any potential it deems fraudulent, suspect, or in violation of these Terms. If Twilio in its sole discretion believes awarding a credit or verifying and approving a transaction will impose liability on Twilio, its subsidiaries, affiliates or any of their respective officers, directors, employees, representatives and agents. All Twilio Entities' decisions are final and binding, except where prohibited, including decisions as to whether a Qualified Referral, or Credit is valid, when and if to terminate the Program, and whether, if at all, to change the program. Any changes to the program will be sent via email to registered Referrer's and, except where prohibited, will become effective as of the date the email is sent. If a Referrer has referrals pending qualification at the time that updates are sent, those pending referrals shall be validated and Credits given under the terms that were valid at the time the Referred Customer signed up for the Upgraded Service. Use of Credits Credits may only be used for qualified Twilio products and services, which can change at any time. They may not be traded and have no monetary value, and may not be redeemed for cash, or traded. Credits are not transferable, salable, or auctionable. If the Program is terminated by Twilio, Referrers will have 6 months to use any Credits before they are forfeited. If a Referrer's account is cancelled for any reason, unredeemed Credits are forfeited immediately. If Referrer's account is suspended for any reason, upon resumption of account privileges. Liability Release Except where prohibited, Users agree that by participating in the Program, they agree: (1) to be bound by these Terms the decisions of Twilio, its Administrators ("Twilio Entities") (if any) and/or their designees, and privacy policies; (2) to release and hold harmless Twilio Entities and their respective parent companies, affiliates and subsidiaries, together with their respective employees, directors, officers, licensees, licensors, shareholders, attorneys and agents including, without limitation, their respective advertising and promotion entities and any person or entity associated with the production, operation or administration of the Program (collectively, the "Released Parties"), from any and all claims, demands, damages, losses, liabilities, costs or expenses caused by, arising out of, in connection with, or related to their participation in the Program (including, without limitation, any property loss, damage, personal injury or death caused to any person(s) and/or the awarding, receipt and/or use or misuse of the Program or any Credit); and (3) to be contacted by Twilio Entities via e-mail. Except where prohibited by law, the Released Parties shall not be liable for: (i) late, lost, delayed, stolen, misdirected, incomplete unreadable, inaccurate, garbled or unintelligible entries, communications or affidavits, regardless of the method of transmission; (ii) telephone system, telephone or computer hardware, software or other technical or computer malfunctions, lost connections, disconnections, delays or transmission errors; (iii) data corruption, theft, destruction, unauthorized access to or alteration of entry or other materials; (iv) any injuries, losses or damages of any kind resulting from acceptance, possession or use of a Credit, or from participation in the Program; or (v) any printing, typographical, administrative or technological errors in any websites or materials associated with the Program. Twilio Entities disclaim any liability for damage to any computer system resulting from participating in, or accessing or downloading information in connection with this Program, and reserve the right, in their sole discretion, to cancel, modify or suspend the Program should a virus, bug, computer problem, unauthorized intervention or other causes beyond Twilio Entities control, corrupt the administration, security or proper play of the Program. Except where prohibited, the Released Parties shall not be liable to any Users for failure to supply any Credit or any part thereof, by reason of any acts of God, any action(s), regulation(s), order(s) or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulations(s), order(s) or request(s) prove(s) to be invalid), equipment failure, threatened terrorist acts, terrorist acts, air raid, blackout, act of public enemy, earthquake, tornado, tsunami, war (declared or undeclared), fire, flood, epidemic, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, civil disturbance, insurrection, riot, or any other similar or dissimilar cause beyond any of the Released Parties' control. As a condition of entering the Program, and unless prohibited by law, Users agree that under no circumstances will Users be entitled to any awards for any losses or damages, and Users hereby waive all rights to claim punitive, incidental, consequential and any other damages, and waives any and all rights to have damages multiplied or otherwise increased. A waiver of rights may not apply to you in your jurisdiction of residence. Additional rights may be available to you. Twilio Entities reserves the right to cancel or suspend this Program should it determine, in its sole discretion, that the administration, security or fairness of this Program has been compromised in any way. Applicable Law Except where prohibited, disputes, claims and causes of action arising out of or related to this Program or any prize awarded shall be resolved under the laws of the United States, and except where prohibited, California law (without reference to its conflicts of laws principles), and participant agrees to submit any dispute to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California. Referrer's Code of Conduct Referrer's agree that they will not violate any of these Terms, or otherwise engage in activity that could be considered harassment toward other users. Users agree not to use the Program to: !Violate the intellectual property rights of Twilio !Spam or otherwise create bulk distributions of the Personal Link or the Personal Bonus Link that is inappropriate !Collect or attempting to collect personal data about users or potential Referred Customers !Engage in any actions that are designed to disrupt or undermine the Program !Make attempts to gain unauthorized access to the software or the Program for any reason !Transmit files that contain bots, viruses, works, Trojan horses, or any other file that could contaminate or otherwise destroy Twilio intellectual property or stop the function of the Twilio services !Engage in illegal or unsportsmanlike activities !Engage in behavior designed to annoy or harass others !Engage in actions that disparage or malign or call into question the reputation of Twilio, in Inappropriate Behavior The Twilio Entities may prohibit anyone from participating in the Program or receiving a if they determine such User is attempting to undermine the fairness, integrity or legitimate operation of the Program in any way by cheating, hacking, deception, or any other unfair playing practices of intending to annoy, abuse, threaten or harass any other Twilio users (whether or not enrolled in the Program), or representatives of Twilio Entities. Use of any automated system to participate is strictly prohibited, and if discovered, and will result in disqualification. Twilio reserves the right to disqualify anyone, cancel Credits, disable or suspect an account, and contact legal authorities (including law enforcement), if it should discover a user is tampering with the entry or referral process or the operation of the Program or violating these Terms. Referrals generated by a script, macro or other automated means will be disqualified. If a solution cannot be found to restore the integrity of the Program, we reserve the right to cancel, change, or suspend the Program. Privacy Participation in the Program may require a Referred Customer and/or a Referrer to submit personal information about themselves. The personal information will be collected, processed and used in accordance with Twilio's Privacy Policy which can be found at http://www.twilio.com/privacy privacy. In addition, personal information may be used by Company on Company's behalf, to contact Users with regards to participation in the Program and to receive communications from Twilio or third party administrators of the Program. Reservations of Rights We reserve the right to modify or amend at any time these Terms and the methods through which Credit are earned. We reserve the right to disqualify any User at any time from participation in the Program if he/she does not comply with any of these Terms. Twilio Entities' failure to enforce any term of these Terms shall not constitute a waiver of that provision. CAUTION: ANY ATTEMPT TO DELIBERATELY DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM MAY BE IN VIOLATION OF CRIMINAL AND CIVIL LAWS AND WILL RESULT IN DISQUALIFICATION FROM PARTICIPATION IN THE PROGRAM. SHOULD SUCH AN ATTEMPT BE MADE, PROGRAM ENTITIES RESERVE THE RIGHT TO SEEK REMEDIES AND DAMAGES (INCLUDING ATTORNEY FEES) TO THE FULLEST EXTENT OF THE LAW, INCLUDING CRIMINAL PROSECUTION INCLUDING WITHOUT LIMITATION WARRANTIES OF NON INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL COMPONENTS. WITHOUT IN ANY WAY LIMITING THE PRIOR SENTENCE, WORLDPAY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT (I) THE CONTENT AND INFORMATION OF THIS WEBSITE IS ACCURATE, SECURE, COMPLETE OR OTHERWISE FREE FROM ERRORS AND OMISSIONS, OR (II) THE LINKS AND OTHER ASPECTS OF THE WEBSITE ARE FUNCTIONAL. Appendix AC Government Requests Twilio is a cloud communications company. Our products and services enable you to build communications features and capabilities into your web, desktop and mobile software applications. We take the security and privacy of our developers extremely seriously. Twilio Transparency Reporting The trust you place in Twilio for your vital communications is of paramount importance. Twilio produces semi-annual transparency reports to provide the visibility you deserve and expect from a cloud service. Check out our Transparency Reports reflecting the the total volume of government requests for information received by Twilio, how Twilio responded to the requests and how often Twilio notified users of the requests. Twilio has received and obtained permission to publish select National Security Letters received. View the available documents. Submitting Law Enforcement Requests to Twilio For instructions on how to submit a law enforcement request for information, click here to read our Law Enforcement Guidelines. Please note that Twilio will only respond to requests that are sent from a government agency via registered email domain; are issued where Twilio is subject to jurisdiction; have an enforceable subpoena, court order, or search warrant compelling us to produce the information requested; and state the categories of records sought and specific time period. icy compels us to notify our customer of requests unless explicitly prohibited from doing so by law. For more information on our non-disclosure policy: https://www.twilio.com/legal/privacy Agencies that do not want us to notify our customer(s) of a request should reference explicit legal authority barring us from disclosing. If your request does not prohibit disclosure and you do not want us to notify our customer, reply stating you withdraw your request or that you will obtain a non-disclosure order. !LEGAL !PRIVACY !TWILIO.ORG !PRESS & MEDIA !SIGNAL !INVESTORS !JOBS Appendix AD Twilio Transparency Reporting Twilio's developer ecosystem, customers and end users expect Twilio to protect their personal information, sensitive data and user privacy. That responsibility includes how Twilio handles government requests received. As part of our commitment to the privacy of your data, Twilio issues semi-annual reports to provide visibility to the Twilio community around the government requests received for customer information by municipal, state, provincial and federal governments globally. In information received by Twilio, how Twilio responded to the requests and how often Twilio notified users of the requests. Twilio will continue to publish semi-annual transparency reports here on the Twilio website. Please be advised that Twilio may restate data going forward if more complete information becomes available or if Twilio changes classifications. Twilio has received and obtained permission to publish select National Security Letters received. View the available documents. Please email transparency@twilio.com with specific questions or feedback on the transparency report. Documents links: Transparency Report - Second Half 2020 Transparency Report - First Half 2020 Transparency Report - Second Half 2019 Transparency Report - First Half 2019 Transparency Report - Second Half 2018 Transparency Report - First Half 2018 Transparency Report - Second Half 2017 Transparency Report - First Half 2017 Transparency Report - Second Half 2016 Transparency Report - First Half 2016 Transparency Report - Second Half 2015 Transparency Report - First Half 2015 Appendix AE Submitting Subpoenas and Civil Requests to Twilio This page provides information for an individual or an attorney seeking user data from Twilio Inc. in civil proceedings in the U.S or outside of the U.S. When Twilio Inc. receives requests for user data, we review them very carefully according to applicable state and federal laws and our terms of service and privacy policy. requests team via: legalrequests@twilio.com or for more information visit: https://www.twilio.com/legal/law-enforcement-guidelines. Due to COVID-19, Twilio personnel are working from home and physical offices are closed. Accordingly, you intend to serve Twilio with legal process, please serve our registered agent, Corporation Service Company (CSC), through its appropriate office (see below), and send a courtesy copy via email to legalnotices@twilio.com to minimize any delay in our response to your request. I am a Twilio customer and have a Twilio Account, can I access my user data? message logs, call logs, and content via . For the collection of message and call logs, there are two options: 1.!The BulkExport API. your activity logs from the Twilio platform on an ongoing basis, or for one-off downloads. 2.!Customer Support Request. Customers can log into their account via https://www.twilio.com/console/ and submit a customer support request. In this request the following information should be provided: Subject Line: Legal Request for SMS Logs and Content re \[Customer Name\] In the Comments field provide: Attention: Twilio Legal Department Account Owner Name: Account Owner Email Address: Account SID: Phone Number(s): Date Range: Description of data requested: see https://www.twilio.com/docs/sms/api/message- resource and https://www.twilio.com/docs/voice/api/call-resource for a description of message and voice properties. Upon receipt of the customer support ticket, an affidavit will be sent to the account owner confirming the request for customer data. What Types of Customer Information Does Twilio have? Phone numbers registered to Twilio are typically subleased to a Twilio customer. Some Twilio customers may then distribute that number to their own end user or subscriber. Twilio cannot identify whether our customer is directly using a phone number or has "resold" the number to their own end user as part of customer contact information, so that you can obtain end user information from the Twilio customer. Other than our customer names, contact information, and types and length of service, the particular categories of other customer information that Twilio has depends on which Twilio products and services services, such as how much our customer has used our particular product or service and may include such things as the origination and destination of calls or messages, and the duration of calls. In some instances, Twilio may also have the content of communications sent or received through our customers software applications. Please note that the law prohibits Twilio from producing in civil litigation certain information. See, e.g., 18 U.S.C. § 2702. Twilio makes much of its customers data accessible to its customers themselves to download, so Twilio encourages parties involved in legal proceedings to obtain ta directly from our customers whenever possible. For a list of message properties, please visit: https://www.twilio.com/docs/sms/api/message-resource. How Do I Serve a Subpoena or Court Order in the United States? Twilio Inc. is a Delaware Corporation with its headquarters in San Francisco, California. Twilio Inc. accepts civil requests for user data (including subpoenas and court orders) issued from the San Francisco Superior Court, the U.S. District Court for the Northern District of California, Delaware state or federal court, or properly domesticated out of state legal process. Twilio Inc. accepts personal service through our registered agent for service of process (CSC) or at our headquarters. Twilio Inc. does not accept service of civil legal process via fax or email. Service on Twilio through CSC will ensure the most efficient and timely handling of the request. Twilio Inc. Attn: Legal 101 Spear Street, First Floor San Francisco, CA 94105 California CSC office: Corporation Service Company 2710 Gateway Oaks Drive, Suite 150N Sacramento, CA 95833 Delaware CSC office: 251 Little Falls Drive Wilmington, DE USA 19808 For a list of other CSC locations, please visit: https://www.cscglobal.com/cscglobal/pdfs/CSC-registered- agent-addresses.pdf Notice: SendGrid Inc. was acquired by Twilio in February 2019 and the SendGrid entity was dissolved in process guidelines. In order for Twilio to process your request, please include at minimum sufficient information regarding the customer account, such as a phone number or account identifier, so that Twilio may identify the customer account(s) at issue. How Do I Serve a Civil Request from Outside of the United States? Requests from outside the U.S. can be sent to: Twilio Inc. c/o Twilio Legal Department (legalnotices@twilio.com) 101 Spear Street, First Floor San Francisco, CA 94105 United States of America Please include your full name, mailing address, email address and phone number with your request. COMMON COUNCILREPORT M&C No. 2021-151 Report Date May 10, 2021 Meeting Date May 17, 2021 Service Area Strategic Services His Worship Mayor Don Darling and Members of Common Council SUBJECT: Statement of Work Agreement with Esri Canada OPEN OR CLOSED SESSION This matter is to be discussed in open session of Common Council. AUTHORIZATION Primary Author Commissioner/Dept. Head City Manager Stephanie Rackley-Roach Kevin Fudge John Collin RECOMMENDATION The City Manager recommends that Mayor and City Clerk be authorized to execute the Esri Canada Consulting Service Request Terms and Conditions between Esri Canada ArcGIS Enterprise. EXECUTIVE SUMMARY As a result of the cyberattack on November 13, 2020, the City is currently in the process of completing software application and data restores to ensure the cost-effective delivery of public service. The City of Saint John is an established ArcGIS user, utilizing ArcGIS desktop for map production and data editing, and both ArcGIS Enterprise and ArcGIS Online for managing and publishing data. The City needs to engage Esri Canada Esri for remote technical consulting support for the installation and configuration of a new ArcGIS Enterprise solution. The cost of the engagement for the scope of work outlined in the Consulting Service Request Order is $13,560 plus HST. PREVIOUS RESOLUTION N/A REPORT Many software applications with their related data need to be restored to support cost- effective service delivery due to the cyberattack the City experienced on November 13, 2020. ArchGIS application supports nearly all service areas in the City as well as agencies, boards, and commissions for mapping and geospatial data. Information Technology resources can complete a portion of the work in terms of network, server, and data recovery requirements. Professional services are required - 2 - from Esri , the third-party vendor for ArchGIS. The primary activities include project management and remote deployment consulting support for the installation and configuration of ArchGIS. The City currently has an agreement with Esri for licensing and support. The City will continue to leverage the licensing already in place. STRATEGIC ALIGNMENT Recovery of the ArchGIS application supports quality delivery of service to our citizens. It ensures a more efficient way to retrieve geospatial data and complete mapping activities for work processes that support public service delivery. SERVICE AND FINANCIAL OUTCOMES The engagement is estimated at $13,560 plus HST. Fees are for professional services only and in accordance with the scope of work outlined in the in the Consulting Service Request Order. Time and material consulting services will be conducted under the following conditions: !In the event Esri Canada completes the Scope of Services for less than the upper limit budget, City of Saint John will only be invoiced for the actual hours expended. !In the event Esri Canada reaches the upper limit budget limit before the Scope of Services is completed, the City of Saint John will have the option to either (a) increase the contract funding in order to allow the work to continue; or (b) instruct Esri Canada to stop work. If the City of Saint John chooses to stop work, Esri Canada will do so without liability. Increasing the funding will be done through a Any portion of the costs that are not recovered under insurance will be funded through the appropriate reserve or operating budget. INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS General Counsel Office has reviewed the Consulting Service Request Order and determined, in consultation with Information Technology and Geographical Information staff resources, practical risks associated with the Conditions, if any, are appropriately mitigated. The Consulting Service Request Order as provided is satisfactory to both Esri and the City. Supply Chain Management has reviewed and is supported of the recommendation above. ATTACHMENTS Esri Canada Consulting Service Request Order with Consulting Service Requests Terms & Conditions %²±¨ # ­ £  #®­²´«³¨­¦ 3¤±µ¨¢¤ 2¤°´¤²³ /±£¤± Project Name: ArcGIS Enterprise Technical Consulting Support Customer Name: City of Saint John Date Submitted: April 28, 2020 Esri Canada Project Manager: Malcolm Blue email: mblue@esri.ca Tel. #: 506-454-7773 x5201 Esri Canada Account Manager: Nick DeMerchant email: ndemerchant@esri.ca Tel. #: 506-454-7773 x5202 Customer Contact: Yves Leger email: yves.Leger@saintjohn.ca Tel. #: 506-674-4229 2¤ ²®­ ¥®± 2¤°´¤²³ ȝ "´²¨­¤²² "¤­¤¥¨³ The City of Saint John (Saint John) requires a new installation of ArcGIS Enterprise on new servers. The City of Saint John is an established ArcGIS user, utilizing ArcGIS desktop for map production and data editing, and both ArcGIS Enterprise and ArcGIS Online for managing and publishing data. The purpose of this proposal is to provide Saint John with remote technical consulting support for the installation and configuration of a new ArcGIS Enterprise solution. 3¢®¯¤ 3³ ³¤¬¤­³ ȝ $¤²¢±¨¯³¨®­ ®¥ 2¤°´¤²³ The project will include the following work packages. Kick-off Meeting The Esri Canada Project Manager will facilitate a 1-hour joint project kick-off meeting to be held remotely via web conference. The purpose of the kick-off meeting is to confirm project scope, resourcing and communications. High level requirements for the deployment will be confirmed during this meeting. Deployment Requirements Review Workshop The Esri Canada Application Specialist will facilitate a deployment requirements workshop of up to 1- hour via video conference to finalize details for the system deployment including ArcGIS system requirements (e.g. required certificates, software licensing, firewall configuration, etc.) and City policy and approach to security, user authentication, web services, requirements for applications and Page 1 of 11 workflows, etc. Results from the Deployment Requirements Review Workshop will be used to plan the deployment activities. Following the workshop, Saint John will be asked to confirm when the identified system requirements are in-place and ready for deployment to begin. The previous deployment, done in 2019, had the following logical layout: Remote Deployment Consulting Support An Esri Canada Application Specialist will work remotely with GIS and IT personnel over the course of 5 days (up to 32 hours) to perform the installation and configuration of ArcGIS Enterprise. A standard base deployment of ArcGIS Enterprise consists of the following: !ArcGIS Server configured as the hosting server for the portal. !Portal for ArcGIS. !ArcGIS Data Store configured as a relational and tile cache data store. !Two (2) installations of ArcGIS Web Adaptor, one (1) installation for traffic to the ArcGIS Enterprise portal and another for traffic to the hosting server. Based on the previous configuration, Saint John will also require a multi-machine deployment of ArcGIS Server for hosting services and applications. Page 2 of 11 The Esri Canada Application Specialist will work with Saint John personnel to install and configure Portal for ArcGIS and the ArcGIS Data Store for the infrastructure supporting internal applications. Remote consulting activities will include, but not be limited to: !Installation of ArcGIS Enterprise base deployment components on no more than two VMs !Installation of ArcGIS Server on a two-machine site. !Implement and configure the identity-based security model. !Federate the ArcGIS Server site with Portal for ArcGIS. !Configure distributed collaboration between on premises ArcGIS Enterprise and ArcGIS Online Organization. !Test the installation by publishing sample map and feature services, creating and sharing web maps and sample Enterprise apps from templates or Web AppBuilder. services from city domain. If this assumption is not correct, the City will also require two installations of ArcGIS Server in the police domain. These servers will publish data from the geodatabase in the City domain for the Vantage Point server. Consulting services for installation of ArcGIS Server in this domain will include, but not be limited to: !Installation of ArcGIS Server on two VMs. !Testing the installation by publishing sample map services to be consumed by Vantage Point software Remote Post Deployment Consulting Support Following the deployment, Esri Canada will provide up to 32 hours of remote consulting support for a period of 60 days. The remote consulting support will be used to provide ongoing support to Saint John personnel performing administration and management of ArcGIS Enterprise, while ArcGIS services and applications are implemented. 3¯¤¢¨ « #®­²³± ¨­³²ȝ#®­²¨£¤± ³¨®­²Ȁ !All work will be performed remotely. !The installation will take place in a single environment on new server infrastructure. !Saint John resources may perform the deployment in a second environment and Esri Canada resource will shadow and support. !Saint John will be responsible for creating map documents and publishing map services in the new environment. Page 3 of 11 !All meetings will be conducted remotely via video conference. !Following the Deployment Requirements Review Workshop, Saint John will ensure all system requirements for ArcGIS Enterprise 10.8.1 have been met for all ArcGIS Server virtual machines prior to scheduling the deployment activities. System requirements can be found here; http://enterprise.arcgis.com/en/system-requirements/latest/windows/arcgis-server-system- requirements.htm !Esri Canada recommends a minimum of 16GB of RAM for ArcGIS Servers ! administrator privileges to facilitate support and script development. !Installation in the police domain assumes that ArcGIS Server in the police domain can be read data $¤«¨µ¤± ¡«¤² The following services described above will be delivered: 1.!A one-hour kick-off meeting via video conference to confirm scope and schedule. 2.!A one-hour deployment requirements meeting via video conference. 3.!Up to 32 hours of remote consulting services to install and configure ArcGIS Enterprise in the City domain. 4.!Up to 32 hours of remote post-deployment consulting support. 5.!If necessary, up to 8 hours to install and configure two instances of ArcGIS Server in the police domain. 0« ­­¤£ 2¤²®´±¢¤² Customer Project Resources Resource Name Role Yves Leger GIS Manager Project Sponsor TBD GIS SME TBD IT SME Esri Canada Project Resources Resource Name Role Malcolm Blue Senior Project Manager TBD Application Specialist Page 4 of 11 #®²³ 3´¬¬ ±¸ Role DescriptionEffort (hrs.)Hourly RateTotal Estimated Cost Application Specialist76 $ 150.00 $ 11,400.00 Sr. Project Manager $ 2,160.00 12 $ 180.00 - - Total Consulting Cost $ 13,560.00 Travel Time $ 87.00 - Estimated Expenses Total Cost $ 13,560.00 3¤±µ¨¢¤ 4¸¯¤Ȁ Time & Materials T&M consulting services will be conducted under the following conditions: !In the event Esri Canada completes the Scope of Services for less than the upper limit budget, City of Saint John will only be invoiced for the actual hours expended. !In the event Esri Canada reaches the upper limit budget limit before the Scope of Services is completed, the City of Saint John will have the option to either (a) increase the contract funding in order to allow the work to continue; or (b) instruct Esri Canada to stop work. If the City of Saint John chooses to stop work, Esri Canada will do so without liability. All work will be accomplished in accordance with the Scope of Services with the deliverable being consulting time. If additional work is requested by the City of Saint John in writing beyond the scope of this quote, Esri Canada will provide an updated quote. Esri Canada will perform and invoice services on a time and materials basis using rates specified for the performance period as per the updated quote. Rates for the Application Specialist and Senior Project Manager are provided in the above Cost Summary table. Rates for other roles will be provided as needed. Labor and direct costs will be invoiced on a monthly basis for actual hours and expenses expended during the previous month. Esri Canada reserves the right to re-allocate resources to appropriately fit the scope of services, as long as doing so does not exceed the fixed upper limit. Payment Terms & Conditions 1.!Costs are quoted in Canadian funds. 2.!Payment must be made within 30 days of CustomerEsri Canada invoice. Page 5 of 11 3.!If any estimated expenses or estimated travel disbursements for Esri Canada resources are described above, they will be invoiced at actual cost. 0±®©¤¢³ #®­³ ¢³ )­¥®±¬ ³¨®­ Customer Contact Name and Address: Yves Léger Manager, Geographic Information Systems / Data Analytics / Open Data City of Saint John QP!Cpy!2:82 Saint John, NB E2L 4L1 Esri Canada Address: 1133 Regent St, Suite 105A Fredericton, NB E3B 3Z2 Esri Canada Contact Name Nick DeMerchant, Account Manager Page 6 of 11 CONSULTING SERVICE REQUEST TERMS AND CONDITIONS Services provided by Esri Canada Limited Esri Canada as applicable) under this Esri Canada Consulting Service Request Order to the customer named under the Order Customer as applicable) are subject to the following terms and conditions (): PERFORMANCE STANDARDS 1.!Esri Canada will provide the services described in the Order ) in accordance with this Agreement. 2.!Esri Canada will ensure that all persons we employ or retain to perform the Services are competent to perform them and are properly trained, instructed, and supervised. WARRANTIES AND DISCLAIMERS 3.!Esri Canada warrants the Services we provide to you will be materially consistent with the Services description in the Order and delivered in a good and workmanlike manner. 4.!Esri Canada warrants the Services we provide to you will be performed using commercially reasonable care and skill. 5.!You understand and agree that these warranties are the exclusive or only warranties given by Esri Canada for the Services. These exclusive warranties replace all other warranties, including the implied warranties or conditions under law of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose. Except for these exclusive warranties all Services we perform are provided "as is". 6.!You are solely responsible for the manner of your use of the Services we provide and you agree that Esri Canada will have no obligation or liability to you under this Agreement for your use of the Services. DELIVERY PERIODS AND ACCESS 7.!You agree that any dates or time periods Esri Canada provides for the performance of Services under this Order are estimated dates or time periods which we may extend to account for any delays caused or occasioned by you or your representatives or by any event or circumstance outside our control. 8.!We may request access to your premises or infrastructure to perform the Services. If we make this request you must allow us reasonable access as applicable to enable us to properly perform the Page 7 of 11 Services. If you require us to meet any of your applicable access requirements including security requirements, you must inform us in writing of any such requirements. ACCEPTANCE 9.!If you do not inform us otherwise in writing within thirty (30) days following our delivery of the Services to you, we will treat the Services as properly performed and accepted by you. CONFIDENTIALITY 10.!Each party acknowledges that it may receive confidential information from the other party during the course of our performance of the Services and this Agreement. 11.!Confidential information will only include such information classified as confidential by the disclosing party or which should reasonably be regarded as confidential. 12.!Confidential information will not include any information which is: (i)!publicly available at the time of disclosure; or (ii)!subsequently becomes publicly available through no fault of the receiving party; or (iii)!is lawfully obtained by the receiving party from another third party without any obligation of confidentiality. 13.!Each party receiving confidential information agrees: (i)!to confidential information; (ii)!to use such confidential information only for the purpose of performance of this Order; (iii)!not to disclose such confidential information to any other person except for those who need to know such information because of the performance of the Services and to bind such persons in writing to keep such information confidential. PRIVACY 14.!Esri Canada will not require any personal information from you for our performance of the Services unless we expressly say so in the Order. If we agree to accept any personal information from you under this Agreement, you must inform us in writing every time you deliver such personal information to us during the course of this Agreement. PAYMENT, TRAVEL AND EXPENSES AND TAXES 15.!You must pay Esri Canada the prices we have quoted in the Order for the Services in accordance with the pricing and payment terms set out in the Order and this Agreement Page 8 of 11 16.!Except quoted in this Order, our prices do not include travel and expenses. 17.!The prices we quoted for the Services do not include any provincial, local, and other taxes (except for income taxes payable by us). If such taxes become applicable to the Services, you must pay any such applicable tax as soon as you receive our written notice that such tax is due. NON-HIRE OF CONTRACTOR PERSONNEL 18.!Neither party will not solicit for hire any personnel or technical staff, who are associated with the Services provided under this Order, for a period of one (1) year after such Services are provided. Notwithstanding the foregoing, a party shall not be restricted from employing personnel who make unsolicited applications in response to a general advertisement or genuine public recruitment campaigns. NON-RESTRICTION OF CONTRACTOR BUSINESS 19.!You understand that Esri Canada also provides professional services for businesses other than yours including businesses in the same industry as yours. You agree that this Order does not prohibit Esri Canada from representing or performing professional services for such other businesses. LIMITATION OF LIABILITY 20.!Esri Canadaour performance of this Agreement or your use of the Services we provide will not exceed the amount of any actual direct damages up to the amounts paid for any such Services that are the subject of the claim, regardless of the basis of the claim. This limit applies collectively to Esri Canada, its subsidiaries and contractors. Your entire liability for all claims in the aggregate arising from this Agreement will not exceed the amounts payable hereunder. Neither party will not be liable for special, incidental, exemplary, indirect or economic consequential damages, lost profits, business, revenue, goodwill, or anticipated savings incurred in connection with the Services or this Agreement. FORCE MAJEURE 21. Neither party will be liable for any failure of or delay in the performance of its obligations hereunder (except in relation to obligations to make payments) for the period that such failure or delay is due Page 9 of 11 to causes beyond its reasonable control. Such causes may include, but are not limited to, an act of God, cyber-attack, major disruption a public infrastructure system, natural disaster, major power outage, epidemic, public health emergency, act of government or court order. GOVERNING LAW AND JURISDICTION 22. The performance of this Order and this Agreement is governed by the laws of the Province or Territory where the Services are performed and the applicable laws of Canada. 23.!All disputes arising out of or in connection with this Agreement or in respect of any defined legal relationship associated with it or derived from it must, unless the parties otherwise agree, be referred to and finally resolved by arbitration under the applicable arbitration laws and within the jurisdiction of the Province or Territory where the Services are performed͵ ACKNOWLEDGMENT 24.!You acknowledge receipt and accept that the terms and conditions of this Agreement form our entire agreement. This Agreement is effective as of the date of last signature below unless otherwise specified in the cu. The parties may execute this Agreement in counterparts or via electronic signatures. Any such execution is valid even if the original paper document bearing both parties' original signatures is not delivered. Any amendments to this Agreement must be in writing under a separate agreement created for such purpose and signed by an authorized representative of each party. For clarity, any additional or superseding terms contained in any purchase order or other standard form documentation issued by you during the ordering process, other than non-conflicting product descriptions, quantities and pricing, will not apply and are of no effect. No such terms override the terms of this Agreement irrespective of the date of issuance of such ordering process documentation or any performance or action by Esri Canada unless Esri Canada expressly agrees in writing. APPROVAL SECTION Customer approval for Esri Canada to begin work in accordance with the requirements of this Order and the terms and conditions of this Agreement. _______________________________ City of Saint John Page 10 of 11 By: ____________________________ !Signature ____________________________ Name and Position ____________________________ Signature Date Esri Canada Limited By: ____________________________ !Signature! Dsbjh!NbdMbdimbo-!Qspgfttjpobm!Tfswjdft!Nbobhfs Name and Position !Bqsjm!39-!3132```````````````! !Signature Date! Page 11 of 11 COMMON COUNCIL REPORT M&C No. 2021-158 Report Date May 13, 2021 Meeting Date May 13, 2021 Service Area Utilities and Infrastructure Services His Worship Mayor Don Darling and Members of Common Council SUBJECT: Non-Disclosure Agreement between the City and Irving Pulp & Paper, Limited, TorchLight Bioresources Inc., and Rathco ENG Ltd. AUTHORIZATION Primary Author Commissioner/Dept. Head City Manager J. Brent McGovern J. Brent McGovern John Collin RECOMMENDATION That: !The City of Saint John enter into a Non- ensure the confidentiality of information to be disclosed by The City of Saint John, IPPL, Torchlight, and Rathco in discussions amongst the foregoing pertaining to the possibility of a district energy system ("DES"); and further that !the Mayor and City Clerk be authorized to execute NDAs in a form substantially similar to the template agreement attached, in order to ensure the confidentiality of information as may be disclosed between The City of Saint John and other applicable parties in future discussions with such parties regarding a DES. EXECUTIVE SUMMARY The parties to the proposed NDA, namely, IPPL, Torchlight, Rathco, and the City, wish to engage in discussions for the purpose of enabling the City and IPPL, as well as the Consultant team, to share information to explore the possibility of using the excess thermal waste energy as a source of energy to provide thermal heating to various municipal, government, and commercial buildings in Saint John. This is part of advancing the district energy system initiative. Council approved a Climate Change Action Plan on May 6, 2019 and on November 9, 2020 Council adopted a Climate Change Adaptation Plan for Saint John. In addition, there is a Climate Change Mitigation Strategy and within that document there is both a Community GHG Action Plan where the Community of Saint John plans to reduce its GHG by 9% by 2025 and by 18% by 2035 and Corporate GHG Action Plan is a plan to reduce GHG by 30% by 2030 and become - 2 - carbon neural by 2040. The district energy system is one of the projects listed in the Corporate GHG and Energy Action Plan. Continuing to develop new and innovative means of generating energy is an important goal for the benefit of all, including the City. PREVIOUS RESOLUTION M&C 2019-313. It is recommended that the City enter into the Grant Agreement with Her Majesty the Queen in Right of Canada, as represented by the Minister of the Environment who is responsible for the Environment and Climate Change Canada under the Low Carbon Economy Fund for the District Energy System (DES) Project in the form and upon the terms and conditions as attached; and that the Mayor and Common Clerk be authorized to execute the said Agreement. M&C 2021-091. It is recommended that Common Council approve the Amending Agreement under the Low Carbon Economy Fund for the District Energy System (DES) Project in the form and upon the terms and conditions as attached; and that the Mayor and Common Council be authorized to execute the said Amending Agreement. M&C 2021-131. It is recommended that Common Council approve the Second Amending Agreement under the Low Carbon Economy Fund for the District Energy System (DES) Project in the form and upon the terms and conditions as attached; and that the Mayor and Common Council be authorized to execute the said Amending Agreement. REPORT The parties to the proposed NDA, namely, IPPL, Torchlight, Rathco, and the City, wish to engage in discussions for the purpose of enabling the City and IPPL, as well as the Consultant team, to share information to explore the possibility of using the excess thermal waste energy as a source of energy to provide thermal heating to various municipal, government, and commercial buildings in Saint John. At this stage, it is too early to provide any further detail as to the nature of and benefits and opportunities inherent in this. Upon execution of the NDA, it will be possible to hold discussions and develop further recommendations to bring to Common Council, as applicable. As a general matter, continuing to develop new and innovative means of generating energy is an important goal for the benefit of all, including the City, and, as such, a reasonable basis upon which to proceed to hold initial discussions subject to confidentiality obligations. - 3 - STRATEGIC ALIGNMENT The DES Project aligns with the following City plans, policies, Council Priorities, programs, and practices: !City of Saint John Corporate GHG and Energy Action plan to reduce GHG emissions by 30% by 2025 and achieve carbon neutral by 2040. !City of Saint John Asset Management Policy objectives to apply risk-based decision and life-cycle costing principles to prioritize capital investment, identify alternative measures, facilitate the leveraging of infrastructure funding from external sources and improve the reliability of customer service. This involves engaging in preliminary discussions around new and innovative energy generating options which aligns with the City of Saint John Corporate GHG and Energy Action plan SERVICE AND FINANCIAL OUTCOMES NA INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS City of Saint John Utilities and Infrastructure Services and General Counsel team reviewed and modified the NDA and are satisfied with the recommendation, as it pertains to their respective areas of service. ATTACHMENTS Non-Disclosure Agreement between the City and Irving Pulp & Paper, Limited, TorchLight Bioresources Inc., and Rathco ENG Ltd. CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT th THIS AGREEMENT is effective as of the X day of X 202X Effective Date. BETWEEN THE CITY OF SAINT JOHN, being a municipality under the Local Governance Act, S.N.B. 2017, c. 18, at Market Square, Saint John, NB City of Saint John - and - NAME, an X having its office at address ("NAME") - and RECITALS A.!The City of Saint John and NAME \[and ADDITIONAL PARTY NAME\] wish to enter into discussions concerning the possible development of a District Energy Project for renewable energy design, production and operations generated and distributed to customers located in The Purpose). B.!In carrying out the Purpose, the Parties may wish to disclose certain information, including third party information, that each considers confidential and wishes to protect. In consideration of the mutual responsibilities and obligations in this Agreement the Parties agree as follows: 1.!INTERPRETATION 1.1.!Definitions. Unless the context requires otherwise, capitalized terms in this agreement will have the following meanings: a)!Affiliate commission, joint venture, corporation, or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control, are controlled by, or are under common control of the specified Party; 2 b)!Applicable Law ordinances, orders, decrees, rules, regulations, permits, licenses, authorizations and directives; c)!Authorized Persons fficers and contractors; d)!"Confidential Information" means any information, including the existence and terms of this agreement, relating to or received as a result of Purpose, in all verbal, digital, written, and material forms and however stored or expressed, and regardless of whether it has been marked as, or communicated as being, confidential. Confidential Information includes but is not limited to information: i)!that forms the substance of any verbal discussions; ii)!that has value to the Disclosing Party and is not generally public knowledge; iii)!that is treated by the Disclosing Party as confidential; iv)!that has been reduced to tangible form and marked clearly and conspicuously with a legend identifying its confidential or proprietary nature; v)!governed by privacy legislation, including but not limited to the Right to Information and Protection of Privacy Act, R.S.N.B. 2011, c. R-10.6 or any other applicable privacy legislation in effect from time to time; vi)!pertaining to any third party information in the Disclosing Party's possession that is subject to applicable privacy legislation or a confidentiality agreement with the third party or both; or vii)!relating to the Disclosing Party's intellectual property, including without limitation, computer data and technology, know-how, patent, copyright, trade secret, process, technique, program, specifications, design, formula, marketing, advertising, or financial matters; e)! Disclosing Party f)!main text g)!Parties The City of Saint John and NAME \[and ADDITIONAL PARTY NAME\], and includes the Affiliates of each; and h)! Recipient \[or Parties\] receiving Confidential Information; 1.2.!Rules of Interpretation 3 a)!In this agreement: i)!The division of the text into sections and paragraphs and the insertion of interpretation of any provision; ii)!Words expressed in the singular include the plural and vice versa. Words connoting gender include both genders. A derivative of a defined term will have a corresponding meaning unless the context requires otherwise; and iii)!Sections include articles, sections, paragraphs or sub-paragraphs as indicated by the numbers or letters cited. b)!The Parties acknowledge that they have participated equally in the preparation of this agreement. If any term of this agreement requires judicial interpretation, mediation or arbitration, the court, mediator or arbitrator will not apply a presumption that this agreement is to be interpreted more strictly against the Party that prepared it. 2.!OBLIGATIONS OF RECIPIENT 2.1.!Strict Confidence. The Recipient will hold and maintain the Confidential Information in the strictest confidence for the sole and exclusive benefit of the Disclosing Party. The Recipient will have a fiduciary obligation to protect the Confidential Information from any harm, tampering, unauthorized access, sabotage, exploitation, manipulation, modification, interference, misuse, misappropriation, copying or disclosure, except as specifically authorized by the Disclosing Party in writing. The Recipient will carefully restrict access to Confidential Information to parties approved by the Disclosing Party, or in response to a subpoena, warrant, order, or demand of a Canadian court of law. 2.2.!Use. The Recipient will use the Confidential Information solely for the fulfillment of the Purpose, and not for any other purpose except with the written consent of the Disclosing Party. The Recipient will not communicate, deliver or disclose in any manner Confidential Information to third parties except as authorized under this agreement or in writing by the Disclosing Party. 2.3.!Notification. The Recipient will notify the Disclosing Party as soon as possible upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this agreement by the Recipient or its employees or agents. The Recipient will cooperate with the Disclosing Party in every commercially reasonable way to help the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. The Recipient will cooperate with the Disclosing Party investigation of the circumstances surrounding the unauthorized use or disclosure. 2.4.!Security. The Recipient will maintain the confidentiality and security of the Confidential Information by using security measures at least as rigorous as those measures it uses to 4 protect its own confidential information, but in any case, which do not fall below the standard of reasonable care. 3.!RETURN 3.1.!Subject to Section 3.2 reproductions, and summaries of Confidential Information and all other tangible materials and devices provided to the Recipient as Confidential Information. The return or destruction of Confidential Information will not relieve the Recipient of its obligations of confidentiality under this agreement with respect to the returned or destroyed information. 3.2.!The Recipient may retain a copy of Confidential Information if required to do so by Applicable Law. 4.!PERMITTED DISCLOSURE 4.1.!Employees and Contractors. The Recipient may disclose Confidential Information only to Authorized Persons on a need-to-know basis, and only with respect to the fulfillment of the Purpose, provided the Recipient makes such Authorized Persons aware of the confidentiality and non-disclosure obligations of the Recipient under this Agreement with respect to the Purpose. The Recipient will ensure that Authorized Persons strictly adhere to the terms of this agreement. The Recipient acknowledges and agrees that it will be responsible for and vicariously liable for any breach of this agreement by Authorized Persons. 4.2.!Disclosure by Order or Applicable Law. The Recipient may disclose Confidential Information in accordance with the order of a court, tribunal or government body having jurisdiction to make such an order or as otherwise required by Applicable Law, provided that the Recipient gives the Disclosing Party commercially reasonable notice before disclosure to allow the Disclosing Party an opportunity to seek a protective order or equivalent or, where required by Applicable Law, to make representations regarding the nature of the Confidential Information, or sole discretion, waive compliance with the terms of this agreement. Where required by Applicable Law, a Party will disclose strictly in accordance with Applicable Law. If no protective order or equivalent is obtained, or if the Disclosing Party waives compliance with this agreement, the Recipient will disclose only that portion of the Confidential Information that the Recipient is advised by counsel is legally required, and will exercise all commercially reasonable efforts to obtain written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under Applicable Law. 5.!EXCLUSIONS FROM CONFIDENTIAL INFORMATION 5.1.!bligations under this agreement do not extend to information that: a)!has become generally known to the public through no wrongful act of the Recipient; 5 b)!has been rightfully received by the Recipient from a third party without restriction on disclosure and without, to the knowledge of the Recipient, a breach of an obligation of confidentiality running directly or indirectly to the other Party; c)!has been disclosed pursuant to a requirement of a governmental agency, or is required to be disclosed by operation of law and is disclosed in accordance with Section 4.2 of this agreement; or d)!becomes known to the Recipient before disclosure under this Agreement, or is independently developed by the Recipient without use, directly or indirectly, of the Confidential Information received from the other Party. 6.!DURATION AND TERRITORY 6.1.!Due to the valuable and proprietary nature of the Confidential Information, the obligations assumed by the Recipient under this Agreement will be unlimited in territory. This Agreement, subject to Section 3, will remain in force for X years commencing on the Effective Date. The obligations set out herein will remain in force for X years following the term of the agreement. 7.!REMEDIES 7.1.!The Parties acknowledge and agree that any breach of this agreement or unauthorized disclosure or use of Confidential Information would cause serious and irreparable harm to the Disclosing Party for which monetary damages would not provide a sufficient remedy. Disclosing Party will therefore be entitled to injunctive or equitable relief as may be considered proper by a court of competent jurisdiction to enforce this agreement, without waiving any other rights or remedies, and without requiring proof of actual damages. All rights and remedies available under this Section 7.1 will be cumulative and in addition to any other rights and remedies to which the Disclosing Party may be entitled. 8.!OWNERSHIP OF INFORMATION 8.1.!All Confidential Information is and will remain the property of the Disclosing Party. By disclosing Confidential Information to the Recipient, the Disclosing Party does not grant any express or implied rights, license to, or interest in, the Confidential Information. The Disclosing Party may, at its discretion, provide Confidential Information to the Recipient as required for the fulfillment of the Purpose. Nothing in this agreement obligates a Party to make any disclosure of information. 9.!GENERAL ASSURANCES 9.1.!Each Party certifies that: a)!it has the capacity and power to enter into this agreement and perform its obligations; 6 b)!the persons executing this agreement on its behalf have been authorized by proper corporate proceedings; c)!this agreement is its legally enforceable obligation; and d)!this agreement is not inconsistent, or in conflict, with, and will not cause the Party to be in breach of, any other contract or obligation. 10.!GENERAL PROVISIONS 11.1 Notices. Notice this agreement will be in writing and will be given by personal delivery, commercial courier service, registered mail (postage prepaid) or by electronic transmission and addressed to the applicable Party as follows: To City of Saint John The City of Saint John Market Square, PO Box 1971 Saint John, NB E2L 4L1 Facsimile: N/A e-mail: jonathan.taylor@saintjohn.ca Attention: Johnathan Taylor To NAME \[address\] Facsimile: \[complete\] e-mail: \[complete\] Attention: \[complete\] To ADDITIONAL PARTY NAME \[address\] Facsimile: \[complete\] Email: \[complete\] Attention: \[complete\] Notice will be considered validly given at the following times: Delivery Method Time of Notice - by personal delivery or day of actual delivery commercial courier service - by registered mail the 3rd day following the deposit in the mail, except that notice will not be effective if given by mail if there is an actual or threatened disruption of regular postal service, - By electronic transmission on the day of transmission 7 If the time of delivery is not a Business Day or if the Notice is received after ordinary office hours at the place of receipt, the Notice will be considered received on the next business day. 11.2!Waiver. Waiving Party Obligated Party under this agreement. A waiver applies only to the specific matter it addresses, extends only to the Waiving Party and will not prejudice the right of the Waiving Party to require the subsequent performance by the Obligated Party of any obligation under this agreement, including the waived obligation on subsequent occasions. 11.3!Entire Agreement. This agreement is a complete and self-contained record of the agreement between the Parties concerning the Confidential Information. No promise, representation, commitment, agreement, negotiation or discussion by either Party in any form, express or implied, that occurred before the execution of this agreement is of any effect with respect to the subject matter of this agreement. The Parties acknowledge that in entering into this agreement they have not relied on any promise, representation, commitment, agreement, discussion or information, express or implied, that is not written in this agreement. 11.4!No Warranties. The Recipient acknowledges that the Disclosing Party does not make any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and expressly disclaims any and all liability that may be based on the Confidential Information, errors therein, or omissions therefrom. The Recipient agrees that the Recipient is not entitled to rely on the accuracy or completeness of the Confidential Information and that the Recipient will be entitled to rely solely on the representations and warranties made to the Recipient in any final agreement relating to 11.5!No Commitment or Restriction. This Agreement binds the Parties only with respect to the matters expressly set forth herein and nothing herein will bind either of the Parties to specific terms or conditions relating to the Transaction. Without limitation of the foregoing, neither Party is bound or committed to engage in negotiations or discussions with respect to the Transaction nor, unless, if, and until a definitive agreement with respect to the Transaction has been executed and delivered by the Parties in their sole discretion, to consummate the Transaction, subject to the terms and conditions thereof. activities in the market. This Agreement does not obligate either Party to deal exclusively with the other Party and does not prevent either Party or their affiliates from competing with the other Party and its affiliates. 11.6!No Relationship. Nothing in this Agreement is to be construed as requiring the Disclosing Party to disclose any Confidential Information to the Recipient, or as creating an agency or fiduciary relationship or joint venture, partnership or any form of strategic alliance whatsoever between the Parties. 11.7!Assignment. No Party may assign this agreement or any part of it without the written 8 consent of the other Parties. 11.8!Amendment. This Agreement may not be amended except by an agreement in writing signed by the Parties or by their successors or permitted assignees. 11.9!Severability. Invalidated Term of competent jurisdiction to be invalid or unenforceable for any reason, the Invalidated Term will not affect the remainder of this agreement. The Invalidated Term will be treated as being modified to the extent necessary to make it enforceable while preserving as much as possible the intent of the Parties expressed in this agreement. 11.10!Signed Originals. Identical copies of this agreement may be signed separately by the Parties and combined to form fully executed originals. A signed agreement delivered by electronic means is as valid as if delivered physically and will be treated as an executed original of this agreement. 11.11!Governing Law. This agreement will be governed by the laws of New Brunswick and the federal laws of Canada applicable therein. In any legal proceeding, this agreement will be treated as having been performed in New Brunswick. Each Party submits to the exclusive jurisdiction of the courts of New Brunswick for all matters arising from this agreement. 11.12!Language. This agreement is written in English by agreement of the Parties. Les Parties 11.13!Further Assurances. The Parties will promptly take any further steps and execute any other documents that as may be reasonably requested or necessary to give full effect to this agreement. 11.14!Binding Effect. This agreement is for the benefit of and binds the Parties and their successors and permitted assignees. 11.15!Counterparts. This Agreement may be executed in counterparts, each of which will be an original, but all of which together will constitute one and the same agreement. Any counterpart may be delivered by electronic communication in portable document format (.pdf), and the Parties agree that their electronically transmitted signatures will have the same effect as manually transmitted signatures. THE PARTIES enter into this agreement by signing below. THE CITY OF SAINT JOHN Signatory name Mayor, City of Saint John Date: 9 Jonathan Taylor City Clerk, City of Saint John Date: ____________________ NAME Name: Title: Date: ___________________ ADDITIONAL PARTY NAME __________________________________ Name: Title: Date: ___________________ /haahb /h…b/L\[w9thw M&C No. 2021-159 Report Date May 14, 2021 Meeting Date May 17, 2021 Service Area Strategic Services His Worship Mayor Don Darling and Members of Common Council SUBJECT: {ƷǒķĻƓƷ aźĭƩƚƭƚŅƷ \[źĭĻƓƭźƓŭ OPEN OR CLOSED SESSION This matter is to be discussed in open session of Common Council. AUTHORIZATION Primary Author Commissioner/Dept. Head City Manager Sarah Ranson Stephanie Rackley-Roach / John Collin Kevin Fudge RECOMMENDATION RESOLVED that the City enter into an Agreement with Softchoice LP, an Ontario limited partnership, to purchase Office 365 on the Microsoft Cloud Solution -159; and that the Mayor and City Clerk be authorized to execute the necessary contract documents. EXECUTIVE SUMMARY City staff are currently onboarding summer students. For students who require a Microsoft license, the City has procured licenses under a Cloud Solution Program (CSP) rather than purchasing an annual license under our Enterprise Agreement (EA) to right-size the cost of a license. Council is required to sign the CSP agreement to finalize the contract and allow the City to benefit from the licensing flexibility it offers. PREVIOUS RESOLUTION On June 8, 2020 That as recommended by the City Manager in the submitted report M&C 2020-87: Microsoft Business and Services Agreement Contract Renewal, Common Council adopt the following: 1.!The City enter into a three (3) year term Enterprise Enrollment Agreement software as outlined in the forms attached to M&C 2020-87, and; - 2 - 2.!That the Mayor and Common Clerk be authorized to execute the necessary documents from Microsoft (submitted). REPORT City staff are currently onboarding students to work for the City over the summer. Some of these students require the use of a computer, which requires a Microsoft license, to provide email and productivity tools, such as Microsoft Excel and Microsoft Word in a secure manner. EA, licenses are a fixed annual cost. Rather than purchase these licenses under the EA, Microsoft is providing temporary licenses under the CSP so a month to month purchasing arrangement is possible. STRATEGIC ALIGNMENT Fiscal responsibility is a priority for Council. The CSP provides a cost-effective licensing solution for students. SERVICE AND FINANCIAL OUTCOMES The cost of a student license is $47.83 plus HST. Purchasing licenses under the CSP contract saves approximately $17.29 per license monthly and is only accrued for the months the license is in use. Approximately 15 students will be hired the summer for inside work. INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS Supply Chain Management was consulted and supports the recommendations. Human Resources provided the estimate of students being hired. General Counselhas reviewed the Agreement. ATTACHMENTS !Microsoft Volume Licensing - Customer Price Sheet !Softchoice LP Agreement to purchase Office 365 on the Microsoft Cloud !Office 365 CSP Resale Terms $90.45 $124.11 Qsjdf Fyufoefe $10.05$13.79 Qsjdf Voju R.64623221.Nbz.3132 GMPPS Ebuf :UI Foe . 09-Jun-202109-Jun-2021 QuoteDate OC Kpio TRVBSF Ebuf Sbdlmfz.Spbdi 2:82 Tbjou KPIO 10-May-202110-May-2021 Tubsu CPY 5M2 Pg Up; NBSLFU CjmmTufqibojfDjuz26Q/P/TBJOUF3M Cjmmjoh MonthlyMonthly Gsfrvfodz 99 Ruz Quote 4F9 F4 379.8749 desk N7L 379.874: Bwfovf PO )911* Tfdvsjuz )911* , Npxbu Tfdvsjuz Softchoice 31Upspoup-Sales/Order Qipof;Gby; Kpio F6 Sbdlmfz.Spbdi Npcjmjuz 476 6177695566:135159221 Tbjoutufqibojf/sbdlmfz.spbdiAtbjoukpio/db Csbxmfz Pg TufqibojfDjuzQipof;Fnbjm;Kpiokpio/csbxmfzAtpgudipjdf/dpnQipof;Gby; EftdsjqujpoFoufsqsjtfNjdsptpgu GMPPS $ Support :UI . 5M2 Tlv Billing aa42- b182- Basic F3M 79c29af7- 3cd0-4a6f-3be5ad69- Ngh For 83e1-4097- a81e31dec84e c0127792d108 OC Month Kpio TRVBSF By Sbdlmfz.Spbdi 2:82 One ;$ Tbjou Softchoice KPIO- PreparedSent - UpCPY Pg Jufn NBSLFU CSP 31113496143111349:88 TijqTufqibojfDjuz26Q/P/TBJOU QuoteQuoteCommentsReflects $0.01 %1/11 %75/69 $215.91 %541/59 %541/59%5:6/17 $0.01 $23.99 TOTAL 09-Jun-2021 GROUP boe dpnqboz 10-May-2021 ITU ebzt zpvs 6 TOTAL up cpui 4 TVCUPUBM cz . Monthly tjhofe Hspvoe 91 bu; bhsffnfou gpvoe cf EFMJWFSZ; dbo qvsdibtf tbmf pg tfqbsbuf b ufsnt ibwf zpv ujnf/ Tpgudipjdf(t Tvqqpsu boz vomftt bu hpwfso/ Cbtjd tbmf- . pg xjmm dibohf up F4 ufsnt Dmpve 476 tvckfdu bhsffnfou pomjof bsf PggjdfNjdsptpgu )DBE*/ pggfst tfqbsbuf jo jt Tpgudipjdf(t uibu up 2 ||Tjh`ft`;tjhofs2;tjhobuvsf~~ tqfdjbm ; A17C- BASIC- dbtf- rvpuf boe 796B6B5F- CLOUD_A1 613C-4E24- ||Obnf2`ft`;gvmmobnf~~ ; EBA730D49C0 tvckfdu {{PO_es_:signer1}} ||Euf`ft`;tjhofs2;ebuf~~ uijt||Uum2`ft`;ujumf~~ ; ; jt ; xijdi jo jo bwbjmbcjmjuz 2 TjhobuvsfObnfUjumfEbufQP$ of qvsdibtf 2 dvssfodz Qsjdjoh-UijtTpgudipjdf-https://www.softchoice.com/softchoice-terms-and-conditions-for-products 31113495933111511598 Bmm Page /haahb /h…b/L\[w9thw M&C No. MC 2021-155 Report Date May 12, 2021 Meeting Date May 17, 2021 Service Area Growth and Community Services His Worship Mayor Don Darling and Members of Common Council SUBJECT: Strategic Real Estate Capital Reserve Fund OPEN OR CLOSED SESSION This matter is to be discussed in open session of Common Council. AUTHORIZATION Primary Author Commissioner/Dept. Head City Manager David Dobbelsteyn Jacqueline Hamilton John Collin RECOMMENDATION Be It Resolved that the Common Council create a Strategic Real Estate Capital Reserve Fund, and that this fund is established from $1,625,899 received from Develop Saint John as part of its wind down on December 31, 2021. Further Be It Resolved that this fund be restricted for strategic real estate development opportunities in the City of Saint John, and that the City Manager be directed to return to Council with a policy on the parameters for spending from this fund. EXECUTIVE SUMMARY As part of the consolidation of Envision Saint John, the City has received $1,625,899 in net financial assets that were returned to the City as part of the wind down of Develop Saint John. Staff recommend that that these funds be transferred to a new {ƷƩğƷĻŭźĭ wĻğƌ 9ƭƷğƷĻ /ğƦźƷğƌ wĻƭĻƩǝĻ CǒƓķ. This will provide the City additional flexibility to support key strategic and catalytic real estate projects both internally, and in the community, specifically with Envision Saint John. Staff will return to Council with a policy on when, and how this specific fund may be accessed, and what it may or may not be used for. REPORT In 2020, Council gave direction to Develop Saint John to officially wind down as corporation. This direction was to facilitate a new regional direction in Economic Development though the creation of Envision Saint John: The Regional Growth Agency. As Develop Saint John was controlled by the City of Saint John, on its wind down on December 31, 2020 all its assets were returned to the City. The remaining funds from Develop Saint John were transferred to their one funder - the City of Saint John, which would have been primarily derived from past revenues from Saint John Industrial Parks. Just prior to its wind down, the City asked the Board of Directors of Develop Saint John to provide the City with the budget of the work that would be required to continue the support Develop Saint John had been offering to the catalytic projects they were helping facilitate, specifically: Fundy Quay, the Central Peninsula Community Hub & Learning Commons, and the Ashburn Interchange. Staff will return to Council at a later date with a recommendation with regards to that budget. In order to support the continued progress on these catalytic projects, as well as support future strategic real estate opportunities, staff recommend that the net financial assets returned by Develop Saint John be transferred to a new Strategic Real Estate Capital Reserve Fund. This will provide the City additional flexibility to support key strategic and catalytic real estate projects both internally, and in the community, specifically with Envision Saint John. Staff will draft a policy for Council approval that both enables growth for the City through strategic investments in catalytic real estate opportunities but is also PREVIOUS RESOLUTION STRATEGIC ALIGNMENT Growth and Prosperity supportive city. We grow in a smart way and attract talent, innovation and Fiscally Responsible Develop long-term sustainable financial plans and budgets that align capital investment and fiscal capacity with service objectives. SERVICE AND FINANCIAL OUTCOMES The City received $1,625,899 in net financial assets from the wind down of Develop Saint John. These will be transferred to a new Strategic Real Estate Capital Reserve Fund from the assets received from Develop Saint John. Staff will create a policy for this fund, in alignment with hƦĻƩğƷźƓŭ ğƓķ /ğƦźƷğƌ wĻƭĻƩǝĻƭ tƚƌźĭǤ and bring it before Council for approval. INPUT FROM OTHER SERVICE AREAS AND STAKEHOLDERS This report has been drafted in consultation with Growth and Community Office. Staff also consulted with Envision Saint John. P ROCLAMATION THTH D ISABILITY A WARENESS W EEK—M AY 3 OTO J UNE 5,2021 “L ET’S T ALK A BILITY!” Whereas, the City of Saint Johnis committed to assisting citizens with disabilities to participate fully in our community, and Whereas, many persons living with disabilities face barriers in the areas of employment, access to information, transportation, housing, education, recreation, and other disability-related supports; and Whereas, we believe that more citizens with disabilities should have the chance to access disability related supports to improve their opportunities in New Brunswick; and Whereas, we support the theme: " Let’s Talk Ability!” Now Therefore Be It Known That I, Don Darling Mayor of the City of Saint John, dohereby request the citizens of the City of Saint John, to join with our Council in recognizing persons with disabilities and their role in our community by the observance of thth Disability Awareness Week, May 30to June 5, 2021. Signed by Mayor Don Darling City of Saint John The Proclamation for Disability Awareness Week was read by Mayor Don Darling during the council meeting of the City of Saint John, and Province of New Brunswick on Monday May 17, 2021. M&C No. 2021-156 Report Date May 12, 2021 Meeting Date May 17, 2021 Service Area Transportation and Environment Services SUBJECT: Letter of Intent Summer Ice License with LBR EXECUTIVE SUMMARY OF COMMITTEE OF THE WHOLE REPORT FOR OPEN SESSION OF COUNCIL The City of Saint John and the Board of Trustees of the Lord Beaverbrook Rink in Saint John, Inc., hereinafter referred to as the LBR Board, are agreeing to a Letter of Intent that would, pending ratification of a final License Agreement, allow the LBR Board the opportunity to operate the Peter Murray Arena for the approximate months of July through September 2021. The LBR would also manage groups requesting to book ice times at the arena during this period. This opportunity would increase access to recreation, specifically ice sports, in our community. The relationship between the City and the LBR Board has been a long-standing one as both organizations have operated City owned arenas for decades; this potential License Agreement only strengthens this relationship. This agreed Letter of Intent will allow the LBR Board to continue developing relationships with groups that may have an interest in securing access to the arena during this period until a final License Agreement can be considered by both organizations at a later date. The City of Saint John 15 Market Square Saint John, NB E2L 4L1 Board of Trustees of the Lord Beaverbrook Rink at Saint John, Inc. 536 Main Street Saint John, NB E2K 1J4 Re: Letter of Intent for the Peter Murray Arena Board of Trustees of the Lord Beaverbrook Rink at Saint John, Inc. of the second part, will adopt a License Agreement to access the st In the License, the City will provide access to the Facility to the LBR from approximately July 1, th 2021 through approximately September 30, 2021 . As compensation, the LBR will pay to the City a monthly fee of between $17,000 and $20,000 plus HST. The City will prepare the Facility with ice prior to the start of the License Term so it can be used for Ice Sports throughout the Term. The City will pay for utilities and contracted services, The LBR will provide miscellaneous materials such as cleaning supplies for the Facility. The LBR will carry out day-to-day inspection and maintenance activities at the Facility except for work performed by third parties such as contracted work and/or activities provided by specialty labour such as mechanics; the work to be performed by the LBR as opposed to third parties will be clearly defined in the License. The LBR will manage users of the Facility, including access and behavior, and the collection and retention of rental revenues. The general purpose of the License is that the Facility will be managed by the LBR in a similar fashion as it is currently operated by the City in order to achieve a seamless transition at the expiration of the Term. The LBR will ensure that the Facility is in substantially the same condition as it was at the start of the Term. The LBR will be responsible for the creation and execution of inspection, maintenance, safety and supervision plans or any other operational plan related to COVID-19. The LBR will submit said plans to the City for approval prior to the start of the Term and the City will have the right to enter the Facility at any time during the Term to th said plans. Further, the LBR will follow t-19 Operational Plan for the Facility at all times. The City will continue to manage contracts for work required to the Facility by third parties. The LBR will advise the City when such work is required and the City will arrange required resources. The City will carry out an Orientation for the benefit of LBR. Said Orientation will focus on explaining the differences between the day-to-day inspection and maintenance activities at the Facility as opposed to the Lord Beaverbrook Rink. COVID-19 restrictions may impact the use of the Facility during the Term. In such event, the LBR may provide seven (7) days written notice of termination of the License to the City. If the LBR exercises this option to terminate the License, the City will refund paid fees on a pro-rated basis. However, the City may charge to the LBR the cost to remove the ice from the Facility to mitigate its losses, the upset fee for said work would not exceed $5,000.00. The City of Saint John _________________________ Name: Don Darling Title: Mayor _________________________ Name: Jonathan A. Taylor Title: City Clerk Common Council Resolution: ______________, 2021 Accepted this _____ day of _________, 2021 by Board of Trustees of the Lord Beaverbrook Rink at Saint John, Inc. _________________________ Name: Title: