WhatsApp ISV Terms

These ISV Terms (“Terms”) are entered into as of the date of signature set forth below by WhatsApp Ireland Limited, unless you are located in the United States, Canada, or Brazil, in which case, WhatsApp Inc. is the contracting entity (“WhatsApp” or “we”), and the company set forth in the signature block below (“you”).

The WhatsApp TOS prohibits, among other things, distributing, selling, reselling, or renting the WhatsApp Business Solution to third parties, and sharing, transferring, or distributing data obtained from using the WhatsApp Business Solution to third parties. FB is offering a Program, during the Term, to permit certain Solution Providers (including Twilio) to grant, and to continue to grant, ISVs access to the WhatsApp Business Solution (including messages) on the condition that ISVs acknowledge and explicitly agree to the terms set forth below. In order for you to continue operating as an ISV providing the Twilio for WhatsApp API to your end clients, you must review and execute the terms below. These terms are subject to the terms of the WhatsApp TOS you previously agreed to.

1. Acceptance of the TOS. You agree to be bound by the WhatsApp Business Terms for Solution Providers (currently available at: https://www.whatsapp.com/legal/business-terms-for-service-providers/), which incorporates, without limitation, the WhatsApp Business Solution Terms (currently available at: https://www.whatsapp.com/legal/business-solution-terms), the WhatsApp Business Terms of Service (currently available at https://www.whatsapp.com/legal/business-terms/), and WhatsApp’s technical and product documentation (currently available at https://developers.facebook.com/docs/whatsapp/guides), and any other related documentation provided by Facebook or WhatsApp (collectively, the “TOS”), as varied by these Terms. You represent and warrant that you have received a copy of, and have reviewed, the TOS (including the terms and policies incorporated therein). For clarity, except as expressly stated herein, the TOS applies unchanged and in full force and effect to you. In the event of any conflict or inconsistency between the provisions of these Terms and the provisions of the TOS, the provisions of these Terms will control, but only to the extent of such conflict or inconsistency. Capitalized terms that are not defined below or in the designated places throughout these Terms have the meaning set forth in the TOS.

2. Variations to the TOS and Additional Terms. The TOS prohibits, among other things, distributing, selling, reselling, or renting the WhatsApp Business Solution to third parties, and sharing, transferring, or distributing data obtained from using the WhatsApp Business Solution to third parties. In violation of the TOS, certain Solution Providers have granted third-party businesses that are neither their end business customers nor Solution Providers (“ISVs”) access to the WhatsApp Business Solution (including messages). WhatsApp is offering a program, during the Term, to permit certain Solution Providers to grant, and to continue to grant, ISVs (including you) access to the WhatsApp Business Solution (including messages) on the condition that (among other things) such ISVs comply with these Terms (the “Program”). Accordingly, notwithstanding anything to the contrary set forth in the TOS, solely during the Term, you agree:

2.1. Your Use of WhatsApp Business Solution. You may only use and access the WhatsApp Business Solution (including messages) on behalf of Client and at the direction of and in compliance with the obligations between you and the Solution Provider and/or Client (as applicable) that engaged you and otherwise in a manner consistent with the TOS, where each reference to “you,” “your,” or “Company” (including “your Company”) shall be interpreted as a reference to you, specifically. For clarity, each reference to “Client” (including “your Client”) in the TOS remains a reference to “Client” as that term is defined herein.

2.2. Your Responsibilities. As between (a) you and the applicable Solution Provider on the one hand, and (b) WhatsApp on the other hand, you and/or the Solution Provider are responsible for providing (i) front-line primary technical and customer support, and you are responsible for escalating unresolved secondary issues to the relevant Solution Provider; and (ii) network infrastructure, transport layer security, and APIs necessary for Client to use the WhatsApp Business Solution.

2.3. Access, Use and Disclosure of Client’s Data.

2.3.1. You must have a binding written agreement with Client that is at least as protective as these Terms (including the TOS) with respect to Client’s data, including industry-standard protections with respect to data privacy and security.

2.3.2. You may only (a) access, use, and process Client’s data on behalf of Client, and (b) disclose Client’s data solely to, or on behalf of, such Client, in each case only at the direction of, and with the authorization of, the Solution Provider and/or Client (as applicable) that engaged you, in order to provide such Solution Provider or Client with the services they requested of you, in connection with the WhatsApp Business Solution and in a manner that is consistent with the TOS, and the Client’s privacy policy. You may not use Client’s data for any other purpose, including for your own purposes or disclose it to any other third parties. Your data and security obligations under the TOS extend to protecting Client’s data.

2.4. Notification. You must maintain an up-to-date list of each Client on whose behalf or at whose direction you use or access the WhatsApp Business Solution (including messages) and the types of such Client’s data that are shared with you (to the extent permitted under any agreement between you and such Client). You will provide us with such information upon our request. In addition, you agree to provide us reports related to your and each such Client’s usage of the WhatsApp Business Solution, as we may reasonably request, within thirty (30) days following of our request.

2.5. Audit Rights. You agree that we (or an independent auditor acting on our behalf) may audit your records, books, access logs, policies, processes, information technology systems (real and virtual), networks, technologies, and facilities (including physical and remote access to data centers and cloud facilities), and agreements with Solution Providers and/or Clients (as applicable), that in each case relate to your use of the WhatsApp Business Solution, to ensure that your use of the WhatsApp Business Solution and the data you receive in connection with these Terms (including Client’s data) is safe and complies with these Terms (including our security requirements), and that you have complied with our requests and requests from Clients and Solution Providers to delete user data obtained through the WhatsApp Business Solution. If requested, you must provide us with proof that your use of the WhatsApp Business Solution complies with these Terms.

2.6. Migration Obligations. If (a) these Terms are terminated, (b) your agreement with the Solution Provider or Client is terminated, or (c) you have directly onboarded a Client to the WhatsApp Business Solution and such Client requests that you migrate its WABA to a Solution Provider or to assume control of its WABA, you must reasonably and in a timely manner (not to exceed thirty (30) days following such notice of termination or such Client’s request and, with respect to (a) and (b), only to the extent required to ensure that the Clients are not adversely affected and as long as such wind-down period is not prohibited under applicable Laws) during and after the Term support the applicable Client’s migration to a Solution Provider or to enable such Client to assume control itself (in each case, as instructed by Client), and you must promptly delete any WABA data and information from your own systems, unless either we and/or Client have instructed you otherwise.

2.7. Prohibition of Client Use. WhatsApp may at any time prohibit any Client’s use of the WhatsApp Business Solution, effective upon notice to you, and you must immediately comply with such prohibition.

2.8. No Resale and Other Restrictions. You must not:

2.8.1. resell the WhatsApp Business Solution, or give any Clients or third parties access to (or permit them to access) the WhatsApp Business Solution (including messages) other than the Client for whom your services have been engaged;

2.8.2. hold yourself out as an agent, legal representative, or employee of WhatsApp (including any of its Affiliates) or suggest any affiliation with WhatsApp (or any of its Affiliates) including that you are an authorized distributor of the WhatsApp Business Solution;

2.8.3. use FB’s or WhatsApp’s trademarks, logos, slogans, or other proprietary materials to promote your business or for any other use;

2.8.4. create or set up WABAs for any Clients or third parties. For clarity, the requirements relating to appointing a system administrator do not apply to you;

2.8.5. use or access the WhatsApp Business Client;

2.8.6. retain any third party as your service provider to manage your, the Solution Provider’s, or Client’s access to the WhatsApp Business Solution (including messages);

2.8.7. charge a fee for using the WhatsApp Business Solution (or related Business Services), but this does not prohibit you from charging for any of your other products and services unrelated to the use of the WhatsApp Business Solution (or related Business Services);

2.8.8. without limiting and in addition to the TOS, with respect to any data you obtain from using the WhatsApp Business Solution (including the content of message threads), directly or indirectly (i) use such data to track, build, or augment profiles on individual WhatsApp users without the express authorization of Client to do so (and only to the extent of such authorization); (ii) share, transfer, sell, license, or distribute such data, including any anonymous, aggregate, or derived forms of such data, to any third parties; or (iii) retarget on or off of WhatsApp and the Facebook Companies’ services, use piggybacking or redirects, or combine that data with any other third-party sources of data; and

2.8.9. use and/or access the WhatsApp Business Solution (including messages) (i) if you are a Governmental Authority; or (ii) for or on behalf of a Client or any third party that is a Governmental Authority, except (in each case of (i) and (ii)) with the express prior written approval of WhatsApp. 3. Your Conduct.

3.1. Compliance with Laws. You represent and warrant that you have complied, and covenant that you will comply, with all applicable Laws, and that you have used and will use only legitimate and ethical business practices in connection with the negotiation and performance of your duties pursuant to these Terms (including the TOS).

3.2. Data Security. When using the WhatsApp Business Solution, you will always have in effect and maintain administrative, physical and technical safeguards that: (a) meet or exceed industry standards given sensitivity of User Data, (b) are compliant with applicable Laws (including data security and privacy laws, rules and regulations), and (c) are designed to prevent any unauthorized access, use (including any use in violation of these Terms (including the TOS)), processing, storage, destruction, loss, alteration or disclosure of User Data (each, an “Unauthorized Data Use”). Following the discovery of any suspected or actual Unauthorized Data Use, you will: (i) immediately notify us of such incident, and (ii) promptly take appropriate actions in compliance with applicable Laws to address and remedy such incident (including notifying the affected users in compliance with applicable Laws and taking any other actions reasonably requested by us). Such notice to us must describe the nature of the Unauthorized Data Use, when the Unauthorized Data Use occurred, the effect on us and/or our users, and your corrective action to respond to the Unauthorized Data Use.

3.3. Anti-Corruption and Trade Compliance. You represent and warrant that you have not engaged in, and covenant that you will refrain from, offering, promising, paying, giving, authorizing the paying or giving of, soliciting, or accepting money or anything of value, including cash or a cash equivalent (including “grease”, “expediting” or facilitation payments), discounts, rebates, gifts, meals, entertainment, hospitality, use of materials, facilities or equipment, transportation, lodging, or promise of future employment (“Anything of Value”), directly or indirectly, to or from: (a) (i) any official or employee of any multinational, national, regional, territorial, provincial or local government in any country, including any official or employee of any government department, agency, commission, or division; (ii) any official or employee of any government-owned or -controlled enterprise; (iii) any official or employee of any public educational, scientific, or research institution; (iv) any political party or official or employee of a political party; (v) any candidate for public office; (vi) any official or employee of a public international organization; or (vii) any person acting on behalf of or any relatives, family, or household members of any of those listed above (collectively, “Government Official”) to (1) influence any act or decision of a Government Official in his or her official capacity, (2) induce a Government Official to use his or her influence with a government or instrumentality thereof, or (3) otherwise secure any improper advantage; or (b) any person in any manner that would constitute bribery or an illegal kickback, or would otherwise violate applicable anti-corruption Laws, in each case, in connection with your participation in the Program under these Terms. You represent and warrant that you have not made a voluntary or other disclosure to, or received any notice, subpoena, request for information, or citation from, or are aware of any past or present investigation of you by a U.S. or non-U.S. multinational, national, regional, federal, state, municipal, local, territorial, provincial or other governmental department, regulatory authority, commission, board, bureau, agency, ministry, self-regulatory organization or legislative, judicial or administrative body, including any other entities funded in whole or in part by any of the foregoing (“Governmental Authority”) related to alleged violations of any anti-corruption Laws. You acknowledge that U.S. and E.U. trade sanctions Laws are applicable to FB, WhatsApp and the WhatsApp Business Solution and, as such, you represent and warrant that you are not subject to any U.S., E.U., or other applicable trade sanctions or economic restrictions and that you will not seek to provide WhatsApp Business Solution to Clients who are subject to E.U., U.S., or other applicable trade sanctions or economic restrictions. Upon request, you must provide WhatsApp with reasonable information necessary to validate that Clients are not subject to U.S., E.U., or other applicable trade sanctions Laws. Notwithstanding any other provision of these Terms or any applicable non-disclosure agreement, WhatsApp may disclose the existence and terms of these Terms, as well as information relating to any probable violation of this Section 3.3 (Anti-Corruption and Trade Compliance), to any Governmental Authority whenever WhatsApp considers it necessary or prudent to do so.

3.4. Notice of Violation. If you become aware that you (or any or your employees or representatives) have violated any provision of these Terms, you must provide prompt notice to Facebook of the facts and circumstances associated with such violation or request.

4. Indemnification. You agree to defend, indemnify, and hold harmless us, our Affiliates, and our respective officers, directors, employees and agents from and against all liabilities, damages, losses, and expenses of any kind (including reasonable legal fees and costs) relating to, arising out of, or in any way in connection with any of the following (“Claim”): (a) your or any Client’s access to or use of the WhatsApp Business Solution, including information provided in connection therewith; (b) your or any Client’s breach or alleged breach of these Terms or applicable Law; and (c) any misrepresentation made by you. We have the right to solely control, and you will cooperate as fully as required by us in the defense or settlement of any Claim.

5. Reserved Rights. Without limiting and in addition to the TOS, we also reserve the right to and may without liability to you immediately limit, suspend, or terminate your access to the WhatsApp Business Solution and/or any or all User Data (or portion thereof) (including access via any or all associated WABAs), if we believe (in our sole discretion) that it is desirable to: (a) protect the integrity, security, or privacy of FB, WhatsApp and any of the other Facebook Company products, systems, or data and/or any users; (b) protect FB, WhatsApp and any of the other Facebook Companies from regulatory, financial, or legal liability and/or to comply with any Law, rule or regulation; or (c) prevent or limit risk of harm or damage (including reputational harm or damage) to FB, WhatsApp or any of the other Facebook Companies and/or each of their respective products, systems, or data.

6. Term and Termination. These Terms become effective on the date accepted and agreed by you below and will continue, unless earlier terminated in accordance with these Terms or the TOS, until the date we, in our sole discretion, make the Program (or some variation or successor thereof) generally publicly available under the TOS (after which only the TOS (unvaried by these Terms) will apply (and you may or may not continue to be permitted to use the Business Services (including the WhatsApp Business Solution) as permitted under the Program) (the “Term”). For clarity, if you become a Solution Provider during the term of the Program, these Terms will immediately terminate (after which only the TOS (unvaried by these Terms) and any other agreements we or FB may enter into with you, will apply) and upon such termination, you may request to participate in the Program as a Solution Provider (subject to your execution of a separate written agreement). Without limiting our termination rights under the TOS, these Terms may be terminated by (a) either party with or without cause upon thirty (30) days’ advance written notice to the other party, and (b) FB with immediate effect in the event you are in violation of Section 3.3 (Anti-Corruption and Trade Compliance). Sections 1 (Acceptance of the TOS), 2.6 (Migration Obligations), 4 (Indemnification), 5 (Reserved Rights), 6 (Term and Termination), 7 (Certain Definitions), 8 (Confidentiality), and 9 (Miscellaneous) of these Terms and the provisions of the TOS, will survive any termination or expiration of these Terms.

7. Certain Definitions. Capitalized terms that are not defined below or in the designated places throughout these Terms have the meaning set forth in the TOS.

7.1. “Client” means a customer that (a) is an end business customer of a Solution Provider, and (b) has either engaged you, or whose Solution Provider has engaged you, to provide services in connection with such customer, and may be described as “Client,” “Customer” or “customer” in the TOS;

7.2. “FB” means Facebook Ireland Limited and Facebook, Inc. (as applicable);

7.3. “Laws” means local, state, provincial, territorial, federal and international laws, regulations, rules and conventions, including those related to data privacy and data transfer, international communications, public procurement requirements, and the exportation of technical or personal data; and

7.4. “Solution Provider” means a solution provider that has undergone WhatsApp’s compliance checks and is authorized by WhatsApp to deploy the WhatsApp Business Solution as a service provider on behalf of its end business customers and may be described as either “Solution Provider” or “Service Provider” in the TOS.

8. Confidentiality. You acknowledge and agree that any and all information disclosed to you (a) by FB, WhatsApp and/or your Solution Provider, or (b) by you to FB, WhatsApp or your Solution Provider, in each case, relating to the matters covered by these Terms, including the existence of these Terms, is Confidential Information of FB and WhatsApp, and subject to the confidentiality obligations set forth in the TOS. Without limiting the TOS, upon termination or expiration of these Terms, you will promptly return or delete such information in your possession at our request. 9. Miscellaneous. You agree that any of your acts, omissions or obligations under these Terms (including the TOS) will be deemed to be “access to or use of our Business Services” for the purposes of these Terms (including the TOS) and any reference to “Business Terms” (including “relating to, arising out of, or in any way in connection with … Company’s breach or alleged breach of these Business Terms”) in the TOS shall be a reference to these Terms (including the TOS). These Terms may not be modified except in a writing duly executed by the parties. Without limiting the TOS, the parties are independent contractors; no employment is created as a result of the Terms and neither party has authority to bind the other. “Including” means “including without limitation.”