Five9 End User License Agreement
Last updated February 24, 2026
This Five9 End User License Agreement (“EULA”) is a binding legal agreement between Five9, Inc. (“Five9”), a Delaware corporation and provider of a cloud-based virtual contact center and related services (e.g., subscriptions, professional services and/or telecommunication services) (collectively, the “Services”), and the end user whose details are either directly received by Five9 upon purchase (“Customer”) or provided to Five9 via a Five9-authorized reseller (“Reseller”). This EULA may refer to Customer and Five9 each as a “Party” and collectively as the “Parties.”
PLEASE READ THIS EULA CAREFULLY BEFORE USING THE SERVICES. BY USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT USE THE SERVICES, AND, IF PRESENTED WITH THE OPTION TO “AGREE” OR “DISAGREE” TO THE TERMS, CLICK “DISAGREE.”
1. SERVICE ORDERS
“Service Order” means the executed order document setting forth Customer’s subscriptions and purchases of the Services. Each Service Order shall include the pricing metrics, quantity, fees, and the Services, as well as any terms applicable to the Services ordered. Five9 will (i) make the Services available to Customer pursuant to this EULA; and (ii) provide technical support for the Services as described at https://www.five9.com/supportservices.
2. TERM AND TERMINATION
a. Term of this EULA. The term of this EULA shall commence on the date of Customer’s acceptance of this EULA and shall continue until all Services made available pursuant to Service Orders under this EULA have expired or been terminated (the “Term”).
b. Termination for Breach. Either Party may terminate this EULA upon thirty (30) days’ written notice to the other Party in the event of a material breach of this EULA by the other Party which remains uncured at the expiration of such thirty (30) days (exclusive of the activities described in Section 2.d.).
c. Termination for Bankruptcy. Either Party may immediately terminate this EULA without liability if the other Party becomes insolvent, files a petition in bankruptcy, is adjudicated bankrupt, seeks a receiver to be appointed for the operation of its business, makes an assignment for the benefit of creditors, abandons its business or makes a material liquidation of its assets.
d. Suspension or Termination by Five9. Five9 reserves the right to immediately suspend Customer’s access, use or performance of the Services if Five9 reasonably and in good faith believes Customer is using the Services: (i) in violation of applicable law or government regulation; or (ii) in a manner that poses an imminent threat to the security, integrity, or operability of the Services. If it is confirmed that Customer engaged in the conduct as described in (i) or (ii) above, Five9, in its sole discretion, may immediately terminate Customer’s access and use of the Services without providing Customer an opportunity to cure. Any resumption of access to or performance of the Services following a suspension or termination by Five9 for the reasons cited in this section shall not entitle Customer to a credit, refund, or extension of the period covered by the prepaid Service Fees unless it is confirmed that Customer did not engage in the conduct as described in (i) or (ii) above.
e. Effect of Termination. Upon termination of this EULA: (i) all rights granted hereunder shall immediately terminate and Customer shall have no right to continue to access or use the Services; and (ii) each Party, at the written request of the other Party shall destroy or return all Confidential Information (as defined below) of the other Party in its possession or control to the extent permitted by applicable law.
3. ACCESS CONTROLS AND USE RESTRICTIONS
a. Access Controls. Customer is responsible for (i) its use of Customer Data (defined below) with the Services and its users’ compliance with this EULA and the Service Orders; (ii) the accuracy, quality, and means by which Customer acquired Customer Data; (iii) the use of the Services only in accordance with this EULA and Service Orders; (iv) all authorized and unauthorized access, use, activities, calls and charges associated with the domain, account, and/or password(s) resulting from use or provisioning of access to the Services by Customer and its users whose access to the Services is provided by Customer; (v) providing notice to and obtaining required consents regarding the collection, processing, transfer, and storage of information from individuals or entities whose information is included in Customer Data through Customer’s use of the Services; and (vi) obtaining, maintaining, and the performance of the internet connectivity related to its use of the Services under this EULA. Customer has sole responsibility and control over access by Customer and End Users (defined in 3.c.), and any other users to the domain, account, and/or password(s).
b. Use Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, or distribute the Services; (ii) reverse engineer, decompile, disassemble, modify, or translate the Services or make derivative works based upon the Services; or (iii) use the Services for any purpose other than to support its internal business purposes or as a business process outsourcer (“BPO”) (subject to Section 3.c. below) and, in either case, not for resale. Customer understands and agrees that (A) it may store its customers’ telephone numbers in the Five9 Virtual Contact Center (“VCC”); (B) storage of Protected Health Information (PHI) or sensitive information in the VCC database (e.g., VCC contact records or agent notes) is strictly prohibited unless Customer orders Five9 encryption Services under an applicable Service Order; and (C) storage of Payment Card Data in text format is strictly prohibited (e.g., Payment Card Data within contact records, agent notes, email, chat, SMS transcripts, etc.).
c. BPO. When acting as a BPO, Customer must order separate Services for each end customer of BPO (each an “End User”) and for each domain of such End User. Customer may not use the same ordered Services or domain for more than one (1) End User. Customer shall enter into a written agreement with each End User requiring each End User to comply with Customer’s obligations under this EULA.
4. CONFIDENTIAL INFORMATION
a. The Parties agree to hold each other’s Confidential Information (defined below) in strict confidence during the term of this EULA and take all reasonable steps to ensure that the disclosing Party’s Confidential Information is not disclosed or distributed in violation of this EULA. The receiving Party agrees not to (i) disclose the disclosing Party’s Confidential Information to any third-party (excluding affiliates and/or subcontractors or third-party services providers who have a need to know and are bound by written terms of confidentiality no less restrictive than those hereunder) unless, and only to the minimum extent required by law or to satisfy governmental regulatory requirements (in which case the receiving Party shall notify the disclosing Party, if legally permitted, of its intent to make such disclosure so that the disclosing Party may seek protective treatment, to the extent reasonably available, for such Confidential Information); or (ii) use the disclosing Party’s Confidential Information for any purpose beyond the scope of this EULA other than with the express prior written consent of the disclosing Party. Customer further agrees that Five9 may disclose Confidential Information of Customer to Five9’s service providers as reasonably necessary to allow such service providers 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). “Confidential Information” means all non-public proprietary and/or confidential information of the disclosing Party marked as confidential or information which by its nature should reasonably be considered confidential, including, but not limited to, the business, technical or financial activities of a Party, its agents, and subcontractors, made available to the other Party under or as a result of this EULA.
b. Receiving Party’s obligations pertaining to Confidential Information shall not apply to information that: (i) is or becomes part of the public domain through no act or omission of the receiving Party, (ii) was in the receiving Party’s lawful possession prior to the disclosure, (iii) is lawfully disclosed to the receiving Party by a third-party without restriction on disclosure, or (iv) is independently developed by the receiving Party without access to or use of the disclosing Party’s Confidential Information.
5. PROPRIETARY RIGHTS
The Five9 Services, products and solutions, and Proprietary Materials (defined below) of Five9 are owned exclusively by Five9 and its licensors including, without limitation, any modifications, customizations, derivative works, performance data, machine learning algorithms, prompts, and aggregated results of such machine learning, and are protected by intellectual property laws and international intellectual property treaties. Subject to the limited rights expressly granted in this EULA, nothing in this EULA shall convey, transfer, or assign any right, title, or interest in either Party's Proprietary Materials to the other Party. "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, and the software, schematics, diagrams, information, and other tangible embodiments, if any, relating thereto.
6. DATA USE AND RETENTION
a. “Customer Data” means any Customer data and information provided by, or on behalf of, Customer via the Services and processed by Five9. Customer retains all ownership of its Customer Data and grants Five9 a worldwide right to use Customer Data strictly to (i) host, copy, access, transmit, and display Customer Data, each as appropriate for Five9 to provide and ensure proper operation and administration of the Services in accordance with this EULA, and (ii) develop, train, optimize, and improve the Services. If Customer does not wish for Five9 to use its Customer Data as set forth in Section 6.a.(ii) herein, Customer shall opt out at https://www.five9.com/legal/optout, which, upon completion, will render Section 6.a.(ii) of this EULA as inapplicable to the extent of such opt out. For clarity, Customer may not opt out of Section 6.a.(i) herein. Five9 shall manage Customer Data in accordance with Five9’s data retention practices as set forth at https://www.five9.com/legal/dataretention.
b. Five9 retains all ownership of artificial intelligence (AI) features and functionality within the Services (collectively, the “AI Services”) including any associated functionality, performance data or metrics, learnings or processes, documentation, algorithms, machine learning models, tools, modifications, improvements, adaptions, annotations, or derivative works thereof which, in any case, shall not include Customer Data.
c. Certain aspects of the AI Services may utilize third-party service providers, and Customer authorizes and consents to Five9 sharing Customer Data with such service providers solely for the purposes described in Section 6.a.(i) above. For clarity, such third-party service providers shall not be permitted to use Customer Data to develop, train, optimize, and improve their own services.
d. Use of AI Services ordered by Customer utilizing technology from Google requires Customer, its End Users, and any other users, to comply with (i) applicable export control laws and regulations and (ii) Google’s acceptable use policy (found at https://cloud.google.com/terms/aup) (“Google’s AUP”). Google and/or Five9 reserve the right to suspend or terminate the relevant AI Services if Customer uses the AI Services in a manner that breaches, or causes a breach of, export control laws and regulations. Customer will immediately remedy any alleged non-conformance with Google’s AUP upon receipt of written notice, and failure to so remedy may result in Customer’s suspension or termination of the relevant AI Services.
7. CALL RELATED COMPLIANCE
a. “Do Not Call” Compliance. If Customer is advised by any Party that it does not wish to receive communications from Customer via the Services, Customer agrees, to the extent required by applicable laws or Customer’s policies, to promptly honor and comply with such do-not-contact requests, including where possible by adding the Party to its internal do not call list, and thereafter refraining from calling that Party. Customer is solely responsible for obtaining any required consent(s) of or release(s) from persons or entities to whom or to which Customer intends to send communications using the Services. Customer agrees to contact only those persons who Customer is legally permitted to contact and only in the manner permitted under applicable law.
b. Call Recordings. Customer acknowledges and understands that, if it subscribes to and uses call recording features of the Services: (i) the recordings and transcripts of such calls are considered Customer Data, and (ii) calls will be recorded at all times, including when a call is placed on hold or after a call is transferred to another Party. When using any call recording features, Customer agrees to comply with all notice, consent, and privacy requirements pursuant to any applicable laws.
b. Customer Consent. In connection with its use of the Services, Customer shall not initiate any autodialed or prerecorded calls or text messages for marketing or promotional purposes unless the called party has given prior express written consent or as otherwise permitted under applicable law.
8. EXPORT CONTROLS
All Services provided, accessed, or used under this EULA are subject to applicable export and import control laws and regulations. Each Party acknowledges its own obligation under and agrees, at its own expense, to comply strictly with such laws and regulations, including, without limitation, the U.S. Export Administration Regulations, and any applicable U.S. economic sanctions, such as those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control and the U.S. Department of State. Customer represents and warrants that it shall not directly or indirectly: (i) export, reexport, or transfer the Services to countries or regions subject to comprehensive U.S. economic sanctions, Russia, or Belarus (or take any action that has the effect of allowing any individual or entity to access, use, or receive Services while in Russia or Belarus); or (ii) access or use the Services or take any action that has the effect of allowing any individual or entity to access or use the Services for: (A) any prohibited end-use; (B) any prohibited 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; or (C) any individual or entity in Russia or Belarus.
9. THIRD-PARTY SERVICES
Customer is solely responsible for the use of third-party services (“Third-Party Services”) and any data loss or other losses it may suffer as a result of using any such Third-Party Services., Customer shall ensure that its use of any Third-Party Services complies with the terms of use of the Third-Party Services provider. Five9 makes no warranty or guarantee with regards to any Third-Party Services, including any integration, interoperation or features between the Five9 Services and Third-Party Services, or the continued availability of such Five9 features, and may cease providing such features for any reason without incurring fault or liability, for example, and without limitation, if the provider of the Third-Party Services ceases to make, or modifies its services, so that the Third-Party Services do not interoperate with the Services. Any cessation of such features will not entitle Customer to any refund of Service Fees or other compensation.
10. WARRANTY
a. Representations and Warranties. Each Party represents and warrants that (i) it has the corporate power and authority to enter into and perform its obligations under this EULA; and (ii) it will comply with all applicable laws in performing its obligations under this EULA.
b. Warranty Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, 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 CUSTOMER’S BUSINESS REQUIREMENTS, OR THAT ALL COMMUNICATIONS WILL BE DELIVERED. AI SERVICES MAY CONTAIN OMISSIONS OR GENERATE MISLEADING, INACCURATE, HALLUCINATIONS, OR FABRICATED CONTENT, AND CUSTOMER ACKNOWLEDGES AND ACCEPTS THIS RISK. FIVE9 MAKES NO WARRANTY AS TO THE COMPLETENESS, ACCURACY, RELIABILITY, SUITABILITY, OR AVAILABILITY OF ANY RESULTS, INFORMATION, SUGGESTIONS, CONTENT, RECOMMENDATIONS, ANALYSIS, OR OUTPUT THAT MAY BE GENERATED OR OBTAINED BY USE OF THE SERVICES. FIVE9 MAKES NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE SERVICES.
11. INDEMNIFICATION
a. By Five9. Five9 will defend Customer and its employees (“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, to the extent arising out of or relating to any claim of infringement by the Five9 Services of any third-party patent, registered trademark, copyright, or misappropriates a third-party’s trade secret, provided Customer is using the Services as authorized under this EULA (each an “IP Claim”). If such an IP Claim is made or is likely to be made, Five9 shall, at its own expense and sole discretion, exercise one of the following options: (x) obtain for Customer the right to utilize the Five9 Services provided hereunder and consistent with this EULA; (y) replace or modify such Five9 Services so they are non-infringing and consistent with this EULA; (z) terminate the applicable Five9 Services that cannot be performed without the use of such infringing Five9 Services without liability for such termination other than the ongoing indemnity obligation hereunder and refund Customer all prepaid but unused Fees prorated from the date Customer no longer has effective use of such Five9 Services. Five9’s obligations in this Section 11.a. do not apply if the IP Claim does not state with specificity how and to what extent that the Five9 Services are the basis of the IP Claim, or to the extent the IP Claim is based on or arises from: (1) Customer’s or third-party’s modification of the Five9 Services or Five9’s compliance with requests or instructions provided by, or on behalf of, Customer; (2) Customer Data or other content provided, uploaded, or used by or on behalf of Customer; (3) Evaluation Services; or (4) the combination, operation, or use of the Five9 Services with other services, products, software, or business processes.
b. By Customer. Customer will defend Five9 and its employees (“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, to the extent arising out of or relating to: (i) Customer’s or End User’s unauthorized or incorrect use, operation, or modification of any e911 Services (as defined below) provided under this EULA including claims arising from Customer’s or End User’s failure to provide location data necessary for proper e911 call routing; and (ii) Customer’s or End User’s unauthorized, illegal, or fraudulent use of the Services.
c. Procedure. As a condition to the obligations of this Section, an indemnified Party shall (i) provide timely notice of a claim for which it seeks indemnification (although untimely notice will relieve the indemnifying Party only to the extent it is prejudiced as a result of such failure to notify) and permit the indemnifying Party to defend or settle any such claim, provided 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 with 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 of such claim, the indemnified Party may assume the defense of such claim at the cost and risk of the indemnifying Party. Each Party will reimburse the other Party for all reasonable costs incurred to the extent requested or required to assist the other Party as part of a compulsory process seeking information regarding whether the other Party has violated any applicable laws (e.g., responding to subpoenas, interrogatories, participating in depositions, and any other forms of discovery or legal process).
12. LIMITATION OF LIABILITY AND DAMAGES
a. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, LOSSES OR COSTS, LOSS OF OR CORRUPTION OF DATA, CUSTOMER’S INABILITY TO ACCESS THE SERVICES BECAUSE OF A FAILURE OR DEGRADATION OF A THIRD-PARTY PROVIDER’S NETWORK, OR LOSS OR LIABILITY RESULTING FROM ACTS BEYOND A PARTY’S REASONABLE CONTROL.
b. EXCLUDING CUSTOMER’S OBLIGATIONS UNDER SECTION 3.C. (BPO) ABOVE, IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS EULA EXCEED: (I) FOR INDEMNIFICATION CLAIMS, TWO TIMES (2X) THE FIVE9 SERVICE FEES PAID OR PAYABLE BY CUSTOMER TO FIVE9 IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY; (II) FOR ALL OTHER CLAIMS, THE FIVE9 SERVICE FEES PAID OR PAYABLE BY CUSTOMER TO FIVE9 IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY IS IN THE AGGREGATE AND NOT PER INCIDENT.
13. EMERGENCY SERVICES TERMS
a. Emergency Services Not Provided for Outside the United States or Canada. Customer fully understands and acknowledges to not use the Services to access emergency organizations outside the United States or Canada, as applicable, and Five9 makes no representation or warranty that the Services are capable of the same. For non-United States and non-Canada registered users, Customer shall ensure at all times it has provided separate or alternative electronic communications services as legally required to provide access to emergency organizations. Calls made from a non-registered user location or improperly provisioned device will be handled by the Emergency Response Center (“ERC”) and will be charged to Customer on a per-call charge basis. Customer shall be responsible for, and agrees to pay, all such additional charges, including, but not limited to, those arising from erroneous calls placed by unknown persons, whether such calls are made accidentally or intentionally.
b. Emergency Services for Registered Users in the United States and Canada.
i. Customer Responsibilities and e911 Limitations. Customer understands that to the extent any e911 services are offered as part of the Services (“e911 Services”), such e911 Services will not function or will not function properly: (A) if a user attempts a 9-1-1 call outside the United States or Canada or from a location different from the user’s then-current registered address provided to Five9’s e911 service provider by Customer, as applicable; (B) during any disruption of power at Customer’s registered user’s location; (C) during any disruption of internet connectivity to Customer’s registered user’s location; (D) during any period in which Five9, Five9’s e911 provider, or Customer’s local exchange carrier has cancelled or suspended delivery of services to Customer for any reason (including suspension or cancellation for failure to pay or Customer’s default); (E) during any period of e911 outage or failure due to events beyond Five9’s or its service provider’s reasonable control; (F) if incorrect or invalid end-user information is provided or if the user is not registered or the information is not updated timely and accurately; or (G) if Customer or its user’s equipment fails to function, is not properly configured, or is defective.
ii. Public Safety Answering Point. Five9’s e911 service provider uses commercially reasonable efforts to deliver every 9-1-1 call with the enhanced location data provided by Customer to the appropriate Public Safety Answering Point (“PSAP”). There are limitations placed upon Five9’s e911 service provider by the PSAPs. Each of the approximately 6,000 PSAPs must individually agree to accept a 9-1-1 call with a VoIP type service. Customer acknowledges that PSAPs fall into three categories: (A) those that accept VoIP 9-1-1 calls with location data on 9-1-1 equipment; (B) those that accept VoIP 9-1-1 calls without location data on administrative lines; and (C) those that do not accept VoIP 9-1-1 calls. In the case of (C), VoIP 9-1-1 calls are routed to the next closest PSAP that accepts VoIP 9-1-1 calls.
iii. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, CUSTOMER AND ITS USERS SPECIFICALLY WAIVE ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO FIVE9’S SERVICES (OR ANY OTHER SERVICE PROVIDED HEREUNDER) TO CONTACT A PSAP OR OTHER EMERGENCY SERVICES PERSONNEL, AND FIVE9 WILL NOT BE LIABLE FOR ANY LOSS (WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL) THAT MAY ARISE FROM THE USE, MISUSE, OR OPERATION OF THE EMERGENCY SERVICES BY CUSTOMER. FURTHER, CUSTOMER ACKNOWLEDGES THAT FIVE9 WILL NOT BE LIABLE FOR ANY CLAIMS ARISING FROM ANY EFFORTS UNDERTAKEN BY FIVE9, ITS THIRD PARTY SUPPLIER, OR THE EMERGENCY RELAY CENTER, TO CORRECT ANY FAILED CUSTOMER EMERGENCY CALLS, INCLUDING BUT NOT LIMITED TO THOSE THAT ARE A RESULT OF INVALID, INACCURATE, OR INCOMPLETE REGISTERED USER LOCATION DATA; ARE A RESULT OF INTERRUPTIONS IN VOICE CONNECTIVITY; OR WHICH CANNOT BE RE-ROUTED TO THE APPROPRIATE PSAP DUE TO INCORRECT OR INVALID LOCATION INFORMATION.
14. EVALUATION SERVICES.
In its sole discretion, Five9 may provide Customer with access to certain pre-release, evaluation, beta, or trial versions of Five9 services or features (“Evaluation Services”) for a limited period, solely for Customer’s internal evaluation and testing purposes (the “Evaluation”). Evaluation Services may not be generally available and the details regarding the Evaluation (e.g., scope, duration, non-production use limits, fees, or other limitations) will be specified by Five9 in writing (email will suffice). Participation in an Evaluation is conditioned upon these terms and Customer’s written agreement and acknowledgement (email will suffice) of such additional Evaluation terms. To participate in the Evaluation, Customer agrees to provide Five9 with suggestions, feedback, recommendations, and other input regarding the Evaluation Services (“Feedback”). All Feedback is deemed Confidential Information and Proprietary Materials of Five9 and Customer grants to Five9 a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use and modify such Feedback without restriction or obligation of any kind, including attribution or compensation. Evaluation Services may contain bugs, errors, or have other functional issues. Customer’s participation in the Evaluation and use of the Evaluation Services is at Customer’s sole risk and liability. Notwithstanding anything to the contrary, the Evaluation Services are provided “AS IS” without any indemnity or warranty, express or implied, and to the maximum extent permitted by law, Five9 disclaims and shall have no liability arising from or related to the Evaluation or the Evaluation Services. Five9 may modify, suspend, or discontinue Evaluation Services at any time without notice. Upon suspension, expiration, or termination of the Evaluation, Customer will cease use of the Evaluation Services and will delete or destroy all related data, materials, content, and information.
15. MISCELLANEOUS
a. Jurisdiction. If Customer’s primary place of business is located in the U.S., this EULA shall be governed by the laws of the State of California without reference to conflicts of laws, and venue for any and all actions arising out of this EULA shall be San Francisco, California. If Customer’s primary place of business is located in Canada, this EULA shall be governed by the laws of the Province of Ontario, and venue for any and all actions arising out of this EULA shall be Toronto, Canada. If Customer’s primary place of business is located outside of the U.S. and Canada, this EULA shall be governed by the laws of England and Wales without reference to conflicts of laws, and courts of England and Wales shall have the non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this EULA.
b. Force Majeure. Except for payment obligations, neither Party shall be held liable or responsible to the other Party nor be deemed to have breached this EULA for failure or delay of performance under this EULA 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 EULA.
c. Privacy and Security. For purposes of this Agreement, each of the following, as applicable, shall constitute a “Data Processing Addendum” or “DPA” and apply to Customer’s use of the Services and Five9’s provision of Services: (i) for Customers with primary place of business located in the U.S./Canada, the Five9 Data Processing Addendum available at https://www.five9.com/legal/privacy-addendum; and (ii) for other Customers, the Five9 Global Data Processing Addendum available at https://www.five9.com/legal/globalcustomerdpa. In the event of any conflict between the terms of the DPA and this Agreement, the DPA will prevail only to the extent of such conflict.
d. Business Associate Agreement. To the extent Customer is acting as a Covered Entity or Business Associate (as such terms are defined in 45 CFR § 160.103 of HIPAA) and Five9, as a result, is acting as a Business Associate or a subcontractor of Customer, as applicable, the parties agree that the Five9 Business Associate Agreement ("BAA"), available at https://www.five9.com/legal/customerbaa is incorporated by reference into this EULA. In the event of any conflict between the terms of the BAA and this EULA, the BAA will prevail only to the extent of such conflict.
e. Sub-processors. Five9 may utilize sub-processors (e.g., third party telecommunications service providers) in providing the Services. The use of any such sub-processor by Five9 shall not relieve Five9 of any of its obligations under this EULA, and Five9 shall be responsible for such actions of its sub-processors to the extent such sub-processors are performing on behalf of Five9 hereunder.
f. Notices. All legal notices, authorizations, and requests in connection with this EULA 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 legal 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 in the Service Order (or as updated or revised in a writing delivered by Customer to Five9).
g. 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 EULA 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 EULA remains enforceable. In the event of a dispute arising out of this EULA, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees. This EULA does not grant any right or cause of action to any third party. The parties shall remain bound by any obligation hereunder that by its nature is intended to survive termination.
h. Interpretation. The parties agree that this EULA, including any addenda, comprises the entire understanding and all obligations between them and supersedes any prior discussions or agreements, including non-disclosure agreements, or correspondence with respect to the subject matter of this EULA. No amendment of this EULA 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 EULA are reserved by Five9 and outside the permitted scope of use under this EULA.
i. Verification Rights. During the Term and for a period of twelve (12) months after this EULA expires or is terminated, Customer will take reasonable steps to maintain complete and accurate records of Customer’s use of the Services sufficient to verify compliance with this EULA (“Verification Records”). Upon reasonable advance notice, and no more than once annually, Customer will, within thirty (30) days of Five9’s notice, allow Five9 and its auditors access to the Verification Records during Customer’s normal business hours.
j. Publicity. Neither Party shall make, or cause to be made, any press release or public announcement in respect of the transactions contemplated by this EULA, or otherwise communicate with or through any news or other media without the prior written consent of the other Party, provided that Customer agrees that Five9 may reference Customer as a customer of Five9 for marketing purposes, including on its websites, subject to any trademark and logo usage guidelines made available publicly or directly by Customer to Five9. In the event Five9 wishes to publish any other material citing Customer, Five9 will present it for Customer’s approval prior to publication, after which approval Five9 may edit and publish such material on a worldwide basis through any medium.
