Master Services Agreement

This Five9 Master Services Agreement (“Agreement”), applies to Customer’s use of the Services (as defined below) that are listed in one or more Five9-issued Service Order signed by the parties, to which this Agreement is attached or incorporated by reference, and is effective as of the Customer signature date of the applicable Service Order (“Effective Date”), is entered into by and between Five9, Inc., a Delaware corporation (“Five9”), having offices at 3001 Bishop Drive, Suite 350, San Ramon, CA 94583 and the customer set forth in the applicable Service Order  ("Customer").

1. Services

 a.       Services and Service Orders. Customer may order services from Five9 (e.g., software subscriptions, professional services and/or telecommunication services) (the “Services”) via a Service Order. A “Service Order” means the executed document setting forth Customer’s subscriptions and orders of the Services pursuant to this Agreement. Each Service Order shall include the products, pricing metrics, quantity and fees for the Services and any other applicable special terms.  Customer’s use and access to the Services is subject to compliance with all of the terms and conditions in this Agreement.  The terms and conditions in this Agreement shall be incorporated by reference into each Service Order, provided that in the event of a conflict between a Service Order and this Agreement, the Service Order will control.

b.       Use Restrictions. Customer agrees not to (i) license, sublicense, sell, resell, transfer, assign, or distribute  the Services ; (ii) modify, translate or make derivative works based upon the Services; (iii) create unauthorized Internet "links" to the Services, "frame" or "mirror" any content on any other server or wireless or Internet-based device or cause harm to the operation of the Services; (iv) reverse engineer, decompile or dissemble any or all of Services; or (v) use the Services for any purpose other than to support its internal call center or business process outsourcing businesses.

c.       Technical Support.  Technical support is included with Customer’s subscription to the Services as provided at http://www.five9.com/4443.    

2. Fees and Billing

a.    Activation and Provisioning. Prior to the activation of the Services, Customer shall pay Five9 the fees specified in the initial Service Order including any applicable activation or implementation fees, or long-distance deposits. Upon receipt of such activation fees, Five9 will commence provisioning the Services so that Customer can log in and access the Services.  For each subsequent Service Order, Five9 shall commence the provisioning process upon receipt of the executed Service Order.  

b.    Fees. Customer shall pay Five9   fees for the Services as set forth in the applicable Service Order (“Service Fees”). Unless otherwise indicated in a Service Order, Customer shall be invoiced for all Service Fees in advance and long-distance usage in arrears. No more than once every twelve (12) months, and upon at least sixty (60) days prior written notice, Five9 reserves the right to modify Service Fees and charges.

c.  Billing. Unless otherwise provided in a Service Order, Customer’s billing cycle begins on the date of the applicable Service Order and Customer shall be invoiced on a monthly basis.  Each invoice will include all Service Fees and any applicable professional services or other charges (“Fees”) incurred during the billing period. Any partial month’s subscription shall be pro-rated as applicable.

d.    Payment Terms. Fees due on a given invoice are payable “Due Net 7” unless otherwise agreed to by the parties in writing.  Payment of all Fees may be made by cash, check or wire transfer of immediately available funds to Five9.  Customer shall be responsible for all sales, value-added or similar taxes due under this Agreement.  Late payments are subject to an interest charge of 1.5% per month or the maximum amount permitted by applicable law, whichever is less.

e.   Order Renewals.   Unless otherwise specified in a Service Order, each Service Order shall automatically renew for additional periods equal to the length of the Service Order term unless Customer provides advance written notice (via e-mail at billing@five9.com) of non-renewal at least thirty (30) days prior to the end of the then-current term.  Five9 shall provide Customer with no less than 180 days notice if any functionality or third party service provided under a Service Order will not be available for any renewal period.

f.     Disputed Charges and Resolution of Disputes. Customer agrees to pay all undisputed charges on a timely basis.  In the event that Customer legitimately and reasonably disputes an invoiced amount, Customer must provide Five9 with written notice (via e-mail at billing@five9.com) of the amount in dispute and the basis for the dispute within 75 days of the date of the invoice.  Upon receipt of notice, Five9 agrees that it will work with Customer to reasonably and expeditiously resolve the dispute.      

g.     Waiver. Failure of Five9 to invoice Customer in a timely manner for any amounts due under this Agreement shall not be deemed a waiver by Five9 of its rights to payment  and all outstanding amounts shall remain due and payable in full by Customer. 

3. Term and Termination

a.   Term of this Agreement. The term of this Agreement shall commence on the Effective Date and shall continue until all subscriptions and services granted pursuant to this Agreement have expired or been terminated (the “Term”).

b.        Termination for Breach. Either party may terminate this Agreement upon thirty (30) days written notice to the other party in the event of a material breach of this Agreement by the other party, provided that  such breach remains uncured at the expiration of the thirty (30) days (except the  notice period regarding Customers with delinquent accounts or Customers engaged in unlawful activities shall be as set forth in Section 3.c.).  

c.     Suspension or Termination by Five9.  Five9 may suspend or disable Customer's access to the Services for any accounts for which undisputed payment is delinquent, provided however that Five9 shall have provided Customer with reasonable adequate notice and sufficient time to cure the delinquency. Five9 may suspend or terminate Customer’s access to the Services if Five9 has a good faith belief that Customer is using the Services: (i) in violation of federal, state or local laws, rules or regulations, (collectively, “Laws”) including but not limited to compliance with "Do Not Call Lists"; or (ii) is compromising the security or operability of the Services.  Five9 agrees that in the event it becomes aware of such actions by the Customer, it will promptly notify the Customer of the unauthorized use and allow the Customer reasonable time to cure, provided that Five9 reserves the right to immediately suspend Customer's access to the Services if necessary to comply with law or regulation.  Resumption of Customer’s account following suspension or termination by Five9 is subject to the sole discretion of Five9.  Customer's resumption of access to the Services following a suspension by Five9 for the reasons cited in this section will not extend the then-current term, nor result in an extension of the period covered by the prepaid Service Fees.

d.       Effect of Termination. Upon termination of this Agreement: (i) all rights granted hereunder shall immediately terminate and Customer shall have no right to continue to access or use the Service, (ii) each party shall , at the option of the other party, destroy or return all Confidential Information of the other party in its possession or control and (iii) Customer shall promptly pay all undisputed Services Fees associated with Customer’s account as of the date of termination provided that Five9 reserves the right to apply any deposits or other amounts delivered by Customer to Five9 to satisfy any amounts owed to Five9 under  this Agreement or a related Service Order. 

4. Customer Responsibilities; Confidential Information

a.  Performance.  Customer is solely responsible for: (i) all authorized and unauthorized access, activities, calls and charges associated with the Customer's Five9 account and/or password(s); and (ii) obtaining and maintaining the Internet connectivity necessary to utilize the Services, and Five9 shall be held harmless for damages arising from the performance of Internet services obtained by Customer in connection with this Agreement. 

b.    Confidential Information.  Confidential information shall be all information that a disclosing party considers to be proprietary and/or confidential including the business, technical or financial activities of either party, its agents and subcontractors, made available to the other party under or as a result of this Agreement ("Confidential Information"). Customer data and other information transmitted by Customer via the Services shall be the Confidential Information of Customer.  The Services and any aggregation or characterization of statistical or analytical information pertaining to the nature or usage of the Services (including improvements to the Services), are the Confidential Information of and proprietary to Five9.  The parties agree to hold each other’s Confidential Information in strict confidence during the term of this Agreement and take all reasonable steps to ensure that the other party’s Confidential Information is not disclosed or distributed in violation of this Agreement. The receiving party agrees not to make the disclosing party’s Confidential Information available  to any third party unless, and only to the minimum extent, required by law or to satisfy governmental regulatory requirements (in which case the party seeking to make such disclosure shall notify the other party, if legally permitted of its intent to make such disclosure, and  the party whose information is to be disclosed may seek protective treatment, to the extent reasonably available, for such  Confidential Information), or to use the disclosing party’s Confidential Information for any purpose beyond the scope of this Agreement other than with the express prior written consent of the other party. Customer further agrees that Five9 may disclose Customer’s Confidential Information to Five9’s service providers only to the minimum extent necessary for them to comply with law or to satisfy governmental regulatory requirements (in which case Five9 shall notify Customer, if legally permitted, of its intent to make such disclosure).  A party’s obligations pertaining to Confidential Information shall not apply to information that the receiving party can document: (a) is or becomes part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure, or (d) is independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information.

5. Data Use and Retention

“Customer Data” is any identifiable information or data collected or provided by Customer to Five9 via the Services.   During the Term, Customer authorizes Five9 to store Customer Data on its secure internal systems and to use and copy Customer Data for the purpose of providing the Service (including technical support) to Customer in accordance with this Agreement.  Customer authorizes Five9 to use non-individually identifiable Customer Data to troubleshoot, test, improve, analyze and optimize the Services.  Five9 will not resell or share (unless, and only to the minimum extent, required by law or to satisfy governmental regulatory requirements) any Customer Data with a third party.  Five9 retains the right to periodically purge Customer data from Five9 servers according to the data retention practices are set forth at www.five9.com/4433.  

6. Call Related Compliance

a.       Use of Services.   Customer assumes all liability and responsibility for its use of the Services and agrees to comply with all Laws pertaining to the use of telephonic equipment and related telecommunications products and services.

b.      "Do Not Call" Compliance. If Customer is advised by any party that it does not wish to receive communications from Customer via the Service, Customer agrees to the extent required by applicable Laws or Customer’s policies to promptly honor such do-not-contact requests, including where possible by adding the party to its internal company-specific do not call list , and thereafter refrain from calling that party.  Customer is solely responsible for obtaining any required consent of or a release from persons or entities to whom or to which Customer intends to send communications using the Service.  Customer agrees to contact only those persons who Customer is legally permitted to contact and only in the manner permitted under federal, state and local law. 

c.    Call Recordings.  Customer acknowledges and understands that if it subscribes to call recording features that calls will be recorded at all times including when a call is placed on hold or after a call is transferred to another party. Customer agrees that when using the call recording features it will comply with all notice/consent and privacy requirements pursuant to any Law.

7. Export Controls

All Services provided under this Agreement are subject to U.S. export control laws and may be subject to export or import requirements in other countries.  Customer acknowledges its obligation under and agrees to comply strictly, at its own expense, with all such laws, including without limitation the U.S. Export Administration Regulations.  Customer shall not directly or indirectly export, reexport, or transship Services without the express written permission of Five9 and, when necessary, a U.S. government license.  In particular, Customer agrees that it will not be direct or indirect export, reexport or transship the Services to countries or regions subject to U.S. economic sanctions (e.g., Cuba, Crimea, Iran, North Korea, Sudan and Syria).  Customer represents and warrants that: (i) the Services are not to be used for any prohibited end-use, including without limitation, use in rocket, missile or unmanned-aerial vehicle systems, chemical or biological weapons proliferation, any nuclear activities, or  military use; and (ii) the Services are not destined for any prohibited end-user, including without limitation a military end-user, or an individual or entity identified on the U.S. List of Specially Designated Nationals and Blocked Parties, Denied Persons List, Entity List or similar  U.S. government lists.

8. Warranty; Disclaimer of Warranty

a.    Representations and Warranties. Each party represents and warrants to the other party that: (i) it has the power and authority to enter into and perform its obligations under this Agreement; and (ii) it will comply with all applicable Laws in its performance under this Agreement.

b.    Warranty Disclaimer. FIVE9 PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. FIVE9 DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, WILL MEET ANY OR ALL OF CUSTOMERS BUSINESS REQUIREMENTS, OR THAT ALL COMMUNICATIONS WILL BE DELIVERED, NOR DOES FIVE9 MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES. FIVE9 MAKES NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICES.  Customer understands that the Services may be inaccessible or inoperable due to scheduled periodic maintenance and upgrades or for reasons beyond Five9's reasonable control including but not limited to (i) Customer equipment or network malfunctions; or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to Five9’s or Customer’s data centers. 

9. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE  FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), EXEMPLARY, SPECIAL, OR PUNITIVE  DAMAGES, LOSSES OR COSTS ARISING OUT OF OR RELATING TO THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATING TO: (A) LOSS OR CORRUPTION OF DATA; (B) INABILITY TO ACCESS THE SERVICE; (C) PERFORMANCE RELATED DELAYS; (D) COMPUTER VIRUSES; (E) NON-DELIVERY OR MIS-DELIVERY OF COMMUNICATIONS; (F) THE NEGLIGENT ACTS OF OTHER FIVE9 SUBSCRIBERS; (G) ANY DEFECTS, FAILURES, ERRORS, OMISSIONS OR MISSTATEMENTS IN ANY AND ALL INFORMATION  PROVIDED FOR DELIVERY BY THE SERVICES; AND (H) LOSS OR LIABILITY RESULTING FROM ACTS BEYOND A PARTY’S CONTROL.  EXCEPT FOR A PARTY’S BREACH OF SECTION 4 (CONFIDENTIALITY) OR A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 11, IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED ALL FEES PAID BY CUSTOMER TO FIVE9 IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY.

10. Indemnification

a.  By Five9. Five9 will defend Customer, its shareholders, directors, officers employees and agents (“Customer Indemnitees”) from and against any action, claim, or proceeding brought against them by a third party, and will  indemnify Customer Indemnitees for any finally-awarded damages and costs, including reasonable  attorney's fees, arising out of or relating to: (i) personal injury or property damage to the extent  arising from negligent or willful acts or omissions of Five9 and/or its employees or agents  under this Agreement, (ii) Five9’s breach of this Agreement, or (iii) any alleged or actual infringement by the Five9 Services of any patent, trademark, copyright, or trade secret, provided Customer is using the Services as authorized under this Agreement.

b.   By Customer.  Customer will defend Five9, its shareholders, directors, officers, employees  and agents ( “Five9 Indemnitees”) from and against any action, claim, or proceeding brought against them by a third party, and will indemnify Five9 Indemnitees for any finally-awarded damages and costs, including reasonable  attorney's fees,  arising out of or relating to: (i) personal injury or property damage to the extent  arising from  negligent or willful acts or omissions of Customer and/or its employees or agents  under this Agreement; (ii) Customer’s breach of this Agreement; (iii) the fact that Five9 does not offer Emergency Services to Customer; or (iv) Customer’s unauthorized, illegal or fraudulent use of the Service.      

c.  Procedure. An indemnified party shall (i) permit the indemnifying party to defend or settle any such claim, provided, however that (x) the indemnifying party shall not enter into any settlement agreement that would result in any admission by the indemnified party, payment by the indemnified party, or additional liabilities to third parties without the indemnified party’s prior written consent which shall not be unreasonably withheld or delayed, and (y) the indemnified party may at its election participate in, but not control, the defense of such claim, suit or the like through separate counsel at its own expense, and (ii) provide the indemnifying party all reasonable assistance (at the expense of the indemnifying party) in connection with the defense or settlement of any such claim, suit or the like. If an indemnifying party opts not to assume the defense of any such claim within sixty (60) days’ notice thereof, the indemnified party may assume the defense of such claim or action at the cost and risk of the indemnifying party. Each party agrees to indemnify the other party from and against any claims arising out of responding to compulsory processes (e.g., subpoenas, interrogatories, depositions, and other forms of discovery or legal process) seeking information about the other party to determine whether the other party has violated any Laws.

11. Ownership of Materials and Rights.

"Proprietary Materials" means all patents, copyrights, design rights, trademarks, service marks, trade secrets and other worldwide intellectual property or proprietary rights owned by a party during the Term, and the software, schematics, diagrams, information, and other tangible embodiments, if any, relating thereto.  The Services including any modifications, customizations or derivative works are owned exclusively by Five9 and its licensors and are protected by intellectual property laws and international intellectual property treaties.  As between Five9 and Customer, Customer Data is proprietary to Customer.  Except for the right to access and use the Services permitted by Five9 to Customer in this Agreement, nothing in this Agreement shall convey, transfer or assign any right, title or interest in either party's Proprietary Materials to the other party.

12. Miscellaneous

a.     Jurisdiction. This Agreement shall be governed by the laws of the State of California without reference to conflicts of laws. Venue for any and all actions arising out of this Agreement shall be San Francisco, California.

b.    Force Majeure. Neither party shall be held liable or responsible to the other party nor be deemed to have breached this Agreement for failure or delay of performance under this Agreement when  caused by or resulting from causes beyond the reasonable control of the affected party, including but not limited to fire, floods, embargoes, acts of war or terror, insurrections, riots, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority; provided, however, that the party so affected promptly notifies the other party of the force majeure event and takes reasonable commercial efforts to avoid or remove such causes of nonperformance, and when they are removed continue performance under this Agreement.    

c.   911 Emergency Services Not Provided.  Customer understands and acknowledges that the Services provided by Five9 do not permit the dialing of "911" or any other emergency telephone numbers or to a public safety answering point (“PSAP”) under any circumstances, and agrees to so inform its agents.  Customer agrees it will obtain arrangements with a third party to provide access to emergency services when using the Services and waives any and all such claims or causes of action against Five9 arising from Customer’s requirement to provide its agents with the ability to contact a PSAP or other Emergency Services personnel or place a 911 call, and any obligation on Five 9 to permit the dialing of 911 or other emergency telephone numbers.

d.        Assignment.  Neither party may transfer or assign this Agreement or any of its rights and obligations under this Agreement without the other party’s prior written consent except that either party may assign this Agreement in its entirety to a successor in interest without requiring such consent in the event of a reorganization, merger, consolidation or sale of all or substantially all of its assets or stock.

e.       Notices. All notices, authorizations, and requests in connection with this Agreement may be sent via email, first-class mail, or courier, and shall be deemed given upon receipt (if sent by electronic mail with receipt-confirmation of successful delivery).  All notices shall be delivered to Five9 via email (currently billing@five9.com) or mail at its then-current corporate headquarters and to Customer at its most current street and/or email address(es) as provided by Customer to Five9 in the Service Order (or as updated or revised in a writing delivered by Customer to Five9).

f.      General.     No failure or delay in exercising or enforcing any right or remedy by either party shall constitute a waiver of any other right or remedy, or future exercise thereof.  If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is only deemed omitted to that extent and the rest of the Agreement remains enforceable.   In the event of a dispute arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees.  The following sections will survive expiration or termination of the Agreement: Section 1.b. (Use Restrictions); Section 2 (Fees and Billing); Section 4 (Customer Responsibilities); Section 5 (Data Use and Retention); Section 10 (Limitation of Liability); Section 11 (Indemnification); Section 12 (Ownership of Materials and Rights); and Section 13 (Miscellaneous).

g.         Interpretation.  The parties agree that this Agreement, including Addendum and any related Service Orders, comprises the entire understanding and all obligations between them, and supersedes any prior agreements, including non-disclosure agreements, or correspondence with respect to the subject matter of this Agreement   No amendment of this Agreement will be binding unless signed by Customer and Five9.  All rights and permissions relating to use and access to the Services that are not expressly granted by Five9 in this Agreement are reserved by Five9 and outside the permitted scope of use under this Agreement.  If there are terms and conditions in this Agreement regarding subjects on which a Service Order is silent, such silence will not constitute a conflict and the terms and conditions in the Agreement will control.  

h.         Publicity.  Neither party shall make, or cause to be made, any press release or public announcement in respect of the transactions contemplated by this Agreement or otherwise communicate with or through any news or other media without the prior written consent of the other party, provided that Customer grants to Five9 a limited, revocable license during the term of this Agreement to use Customer’s name and logo on its website and marketing materials.