FIVE9 REFERRAL PROGRAM
CUSTOMER SPECIFIC REFERRAL AGREEMENT (EFFECTIVE FEBRUARY 18, 2016)
BY CLICKING THE “SUBMIT” BUTTON DISPLAYED AS PART OF THE REFERRAL PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR PARTICIPATION IN THE FIVE9 REFERRAL PROGRAM (THE “PROGRAM”). IN THE EVENT FIVE9, Inc. ACCEPTS YOUR CUSTOMER SPECIFIC REFERRAL, YOU AGREE THAT THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY.
THE “EFFECTIVE DATE” OF THIS AGREEMENT SHALL BE THE DATE OF FIVE9’S ACCEPTANCE OF YOUR REFERRAL.
This Customer Specific Referral Agreement (the “CSRA”) is entered into as of the “Effective Date” and is incorporated by reference into the Master Referral Agreement by and between Five9, Inc., a Delaware corporation (the “Company”), and the “Referring Agent”.
WHEREAS, both parties entered into a Master Referral Agreement which contemplated the creation of individual sub-agreements to be designated as Customer Specific Referral Agreements;
NOW, THEREFORE, in consideration of the mutual covenants and representations, and subject to the conditions herein contained, the parties hereto agree as follows:
1. CUSTOMER Referred from Referring Agent. This Agreement is not effective unless and until the Company notifies you in writing (including via email) that your referral has been accepted. This CRSA is limited to the specific CUSTOMER referred to herein and nothing herein shall be construed as applying to any other referred customer or any other customer of Five9.
2. Referral Fee. In consideration for Referring Agent’s referral of customer, the Company shall pay Referring Agent a referral fee (“Referral Fee”) equal to:
3. 15% of the “net VCC Agent Seat fee”. Percentages are based on the “net VCC Agent Seat fees” actually collected and received by the Company from customer. In no event shall any fees be owed beyond the term of the contractual agreement between Five9 and the customer.
4. The Referral Fees shall be paid for the first 24 months of the term of the initial hosted services agreement with customer.
5. The Referral Fee shall be due and payable for the total number of seats ordered by the customer when the hosted services agreement is first entered into by customer and Five9. In the event additional seats are ordered by an existing referred customer, the referral fee applied to those additional seats shall follow the same formula detailed in Section 2a. In the event that seats are discontinued at any time, the referral fee applied to any and all remaining seats shall follow the same formula detailed in Section 2a.
6. No Referral Fee shall be due, owing or payable for any set-up fees, local or long-distance charges or any other amounts charged by the Company to customer.
7. All Referral Fees shall be due and payable to Referring Agent within 30 days of the date the Company actually receives payment from customer of the net VCC Agent Seat fees for which the Referral Fee is due. No Referral Fees shall be due on outstanding or unpaid customer invoices.
8. “Net VCC Agent Seat fees” shall mean only monthly seat fees actually collected by the Company after deduction of any taxes, charge-backs, discounts, refunds, tariffs and other extraordinary charges.
9. Company Discretion. The Company has the right, in its sole and absolute discretion, to determine whether and on what terms it will enter into an agreement or modify an existing agreement with the CUSTOMER and whether to accept or reject or terminate any agreement with the CUSTOMER. If the Company declines to enter into an agreement with the CUSTOMER, the Company shall have no obligation to Referring Agent hereunder with respect to such CUSTOMER or regarding any agreement with such CUSTOMER that occurs three (3) months after termination of the Master Referral Agreement between the Referring Agent and the Company.
10. Relationship Between The Parties. Referring Agent shall operate as an independent contractor and shall not act as, or be, an agent, employee, partner or joint venturer of the Company. Referring Agent shall in no way have authority to bind or obligate the Company in any respect.
11. Compliance With All Laws. Referring Agent shall perform the services provided herein in compliance with all applicable laws, rules, and regulations.
12. Termination of Customer Specific Referral Agreement. This CSRA terminates upon either the termination of the specific agreement between the CUSTOMER and Five9 or three (3) years from the Effective Date of this CSRA, whichever is earlier. However, this CSRA may be earlier terminated by the Company for cause. Termination for cause shall include, but is not limited to, breaches of confidentiality or disclosures of proprietary information to third parties including direct competitors of the Company; or intentional misrepresentations or fraudulent actions or statements by Referring Agent as to Company’s products, services, pricing, terms or any other aspect of the Company’s business to prospective customers or to any third-party. This Customer Specific Referral Agreement shall survive the termination of the Master Referral Agreement, of which it is a part, provided that the CUSTOMER is an active user of the Five9 VCC at the time the Master Referral Agreement terminates.
13. Miscellaneous. This Customer Specific Referral Agreement is an attachment to and part of the Master Referral Agreement and is governed by the terms and conditions of the Master Referral Agreement and together with the Master Referral Agreement and any other Customer Specific Referral Agreements constitutes the Entire Agreement between the Company and Referring Agent and supersedes all prior agreements between the parties, whether oral or written, and may only be amended by a writing signed by both parties. In the event of any conflict between this Customer Specific Referral Agreement and the Master Referral Agreement, this Customer Specific Referral Agreement will control. For the avoidance of doubt, if there are terms and conditions in the Master Referral Agreement regarding subjects on which this Customer Specific Referral Agreement is silent, such silence will not constitute a conflict and the terms and conditions in the Master Referral Agreement will control. This CSRA shall be governed by and construed under the laws of the State of California without regard to its conflict of law rules. Venue for all disputes arising out of this CRSA shall be Alameda County, California. Any notice or other communication required or permitted to be given by either party shall be given in writing either personally or by U.S. first class mail, postage prepaid, addressed to the other party at the address shown below such party’s signature hereto or to such other address as either party shall indicate by proper notice to the other in the same manner as provided above. All notices will be deemed effective either upon receipt or five (5) business days after mailing in accordance with the above provisions. This CSRA may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This CSRA may be amended only by a writing executed by the parties hereto and the observance of any term of this CSRA by a party hereto may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the other party. If one or more provisions of this CSRA are held to be unenforceable under applicable law, such provision, or such portion of such provision as may be necessary, shall be excluded from this CSRA and the balance of the CSRA shall be interpreted as if such provision were so excluded and shall be thereafter enforceable in accordance with its terms.