Five9 End User License Agreement

This Five9 End User License Agreement (“Agreement” or “EULA”) is a binding legal agreement between Five9, Inc. (“Five9”) a Delaware corporation and provider of cloud-based virtual contact center software and related services (e.g., software subscriptions, professional services and/or telecommunication services) (collectively, the “Services”), and you (the legal entity you represent) whose details are provided to Five9 upon purchase (hereinafter “Customer”, “End Customer” or “you”) via a Five9-authorized reseller (“Reseller”). This EULA applies to your use of the Five9 Services you order from Reseller. This EULA shall take precedence over any conflicting terms in any non-Five9 ordering documentations and this EULA is considered part of your order with Reseller.

1. SERVICES

Orders. “Order” means your order with Reseller that sets for the authorized scope of End Customer’s use of the Services. Each 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. End Customer understands and agrees that Five9 is not bound by any obligations to End Customer other than what is included in this EULA, and its addenda (if any).
Use Restrictions. End 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; (v) use the Services for any purpose other than to support its internal call center business or (vi) use the Five9 Virtual Contact Center (VCC) to store any information other than telephone numbers, call recordings, chat transcripts, email transcripts or SMS message transcripts.
Technical Support. Technical support is included with End Customer’s subscription to the Services as provided at https://www.five9.com/supportservices.

2. FEES AND BILLING

Activation and Provisioning. Upon Five9’s receipt of any applicable activation fees and confirmation of End Customer’s acceptance of this EULA, Five9 will commence provisioning the Services so that End Customer can log in and access the Services upon provisioning. For any subsequent End Customer Orders, Five9 shall commence the provisioning process upon receipt of the executed Order with Reseller.

3. TERM AND TERMINATION

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”).
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 End Customers engaged in unlawful activities shall be as set forth in Section 3.c.).
Suspension or Termination by Five9. Five9 may suspend or terminate End Customer’s access to the Services if Five9 has a good faith belief that End 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 End Customer, it will promptly notify the End Customer of the unauthorized use and allow the End Customer reasonable time to cure, provided that Five9 reserves the right to immediately suspend End Customer's access to the Services if necessary to comply with law or regulation. Resumption of End Customer’s account following suspension or termination by Five9 is subject to the sole discretion of Five9. End 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.
Effect of Termination. Upon termination of this Agreement: (i) all rights granted hereunder shall immediately terminate and End Customer shall have no right to continue to access or use the Service, and (ii) each party shall, at the option of the other party, destroy or return all Confidential Information (unless prohibited by applicable law from doing so) of the other party in its possession or control.

4. END CUSTOMER RESPONSIBILITIES; CONFIDENTIAL INFORMATION

Performance. End Customer is solely responsible for: (i) all authorized and unauthorized access, activities, calls and charges associated with the End 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 End Customer in connection with this Agreement.
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"). End Customer data and other information transmitted by End Customer via the Services shall be the Confidential Information of End 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. End Customer further agrees that Five9 may disclose End 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 End 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

“End Customer Data” is any identifiable information or data collected or provided by End Customer to Five9 via the Services. During the Term, End Customer authorizes Five9 to store End Customer Data on its secure internal systems and to use and copy End Customer Data for the purpose of providing the Services (including technical support) to End Customer in accordance with this Agreement. End Customer authorizes Five9 to use non-individually identifiable End 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 End Customer Data with an unauthorized third party. Five9 retains the right to periodically purge End Customer data from Five9 servers according to the data retention practices are set forth at https://www.five9.com/dataretention. Customer is responsible for, and represents and warrants that Customer has and will continue to: (i) have the authority to provide the Customer Data to Five9; and (ii) obtain and maintain any necessary or legally required notices, policies, consents or releases from individuals or entities whose data or information is included in the Customer Data.

6. CALL RELATED COMPLIANCE

Use of Services. End 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.
"Do Not Call" Compliance. If End Customer is advised by any party that it does not wish to receive communications from End Customer via the Service, End Customer agrees to the extent required by applicable Laws or End 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. End Customer is solely responsible for obtaining any required consent of or a release from persons or entities to whom or to which End Customer intends to send communications using the Service. End Customer agrees to contact only those persons who End Customer is legally permitted to contact and only in the manner permitted under federal, state and local law.
Call Recordings. End 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. End 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. End 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. End 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, End 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). End 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. INTEGRATIONS AND INTER-OPERABILITY

The Services may contain features designed to interoperate with non-Five9 Services (“Non-Five9 Services”). If Customer integrates or directs Five9 to integrate the Services with any Non-Five9 Services, Customer acknowledges that such Non-Five9 Services might access or use Customer Data and Customer permits the Non-Five9 Services to access or use Customer Data. Customer is solely responsible for the use of such Non-Five9 Services and any data loss or other losses it may suffer as a result of using any such Non-Five9 Services, and Customer shall ensure that its use of any such integration or interoperability complies with the terms of use of those Non-Five9 Services. Five9 makes no warranty or guarantee with regards to any such interoperation, any Non-Five9 Services, or the continued availability of such 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 Non-Five9 Services ceases to make the Non-Five9 Services available for interoperation with the Services. Any cessation of such features will not entitle Customer to any refund of Services Fees or other compensation.

9. WARRANTY; DISCLAIMER OF WARRANTY

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 including, but not limited to export control, anti-bribery and anti-corruption laws.
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 END CUSTOMER’S 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. End 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) End Customer equipment or network malfunctions; or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to Five9’s or End Customer’s data centers.

10. LIMITATION OF LIABILITYAND DAMAGES

EXCEPT WITH REGARD TO A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), EXEMPLARY, SPECIAL, ACTUAL, DIRECT, PUNITIVE OR OTHER 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.

IN NO EVENT SHALL EITHER PARTY’S LIABILITY (INCLUDING ANY OBLIGATIONS OF DEFENSE AND/OR INDEMNITY) UNDER THIS AGREEMENT EXCEED ALL FEES PAID BY END CUSTOMER TO RESELLER FOR THE FIVE9 SERVICES IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY.

11. INDEMNIFICATION

By Five9. Five9 will defend End Customer, and its employees (“Customer Indemnitees”) from and against any action, claim, or proceeding brought against them by a third party other than Reseller, and will indemnify End 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; or (ii) any alleged or actual infringement by the Five9 Services of any patent, trademark, copyright, or trade secret, provided End Customer is using the Services as authorized under this Agreement.
By End Customer. End Customer will defend Five9 and its employees (“Five9 Indemnitees”) from and against any action, claim, or proceeding brought against them by a third party other than Reseller, 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 End Customer and/or its employees or agents under this Agreement; (ii) Customer’s unauthorized or incorrect use, operation, or modification of any e911 services if provided under this Agreement, including claims arising from Customer’s failure to provide location data necessary for proper e911 call routing; or (iii) End 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.

12. 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 its Proprietary Materials protected by intellectual property laws and international intellectual property treaties. As between Five9 and End Customer, End Customer Data is proprietary to End Customer. Except for the right to access and use the Services permitted by Five9 to End 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.

Intelligent Virtual Agent Services. In the event Customer purchases Intelligent Virtual Agent Services (“IVA Services”) from Five9, Customer agrees as follows:
1. Five9 may store, access, utilize, copy and process Customer Data for the purposes of: (i) providing IVA Services specified in the Service Order to Customer, (ii) improving, enhancing, supporting and training the IVA Services and performing other development and diagnostic activities, (iii) maintaining Five9 records relating to such IVA Products, and (iv) complying with any legal or self-regulatory obligations relating to such IVA Products. Customer instructs Five9 to process its Customer Data for such purposes.
2. During the term of the applicable Service Order, Customer may use the subscribed-to IVA Services in accordance with the terms of this Agreement but obtains no ownership of the IVA Data (as defined below) or IVA Services, including any related documentation or any modifications, improvements, adaptions or derivative works. As between Five9 and Customer, Five9 owns the IVA Services, including but not limited to (i) any algorithms, training data and machine learning models, and (ii) all performance data or metrics, aggregated information, tooling, transcripts, learnings, or processes developed via the IVA Services or their use, including any annotations or output of any IVA Services that is not a call transcript or call recording (collectively, “IVA Data”).

13. E-911 EMERGENCY SERVICES TERMS

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: (i) if a Customer user attempts a 9-1-1 call from a location different from the Customer user’s then current address provided to Five9’s e911 service provider by Customer; (ii) during any disruption of power at Customer’s location; (iii) during any disruption of internet connectivity to Customer’s location; (iv) 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); (v) during any period of e911 outage or failure due to events beyond Five9’s or its service provider’s reasonable control; (vi) if incorrect or invalid Customer user address information is provided or is not updated accurately; or (vii) if Customer equipment fails to function, is not properly configured or is defective.
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: (i) those that accept VoIP calls with location data on 9-1-1 equipment; (ii) those that accept VoIP 9-1-1 calls without location data on administrative lines; and (iii) those that do not accept VoIP 9-1-1 calls. In the case of (iii) VoIP 9-1-1 calls are routed to the next closest PSAP that accepts VoIP 9-1-1 calls.
CUSTOMER SPECIFICALLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, 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 E911 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 (“ERC”) TO CORRECT ANY FAILED CUSTOMER EMERGENCY 911 CALLS, INCLUDING BUT NOT LIMITED TO THOSE THAT ARE A RESULT OF INVALID OR INCOMPLETE USER LOCATION DATA; ARE A RESULT OF INTERRUPTIONS IN VOICE CONNECTIVITY; OR WHICH THE ERC IS UNABLE TO RE-ROUTE TO THE APPROPRIATE PSAP DUE TO LACK OF CORRECT OR VALID LOCATION INFORMATION.

14. MISCELLANEOUS

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.
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.
Subprocessors. Five9 utilizes subprocessors (e.g., third-party telecommunications service providers) in providing the Services. The use of such subprocessors is subject to Five9 putting in place a written contract with each subprocessor that imposes—with respect to the services provided by such subprocessor—obligations that are materially equivalent to the obligations imposed on Five9 under this Agreement. The use of a subprocessor by Five9 shall not relieve Five9 of any of its obligations under this Agreement and Five9 shall be responsible for the actions of its subprocessor.
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.
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 End Customer at its most current street and/or email address(es) as provided to Five9 by Reseller (or as updated or revised in a writing delivered by Reseller to Five9).
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 (End Customer Responsibilities; Confidential Information); Section 5 (Data Use and Retention); Section 10 (Limitation of Liability); Section 11 (Indemnification); Section 12 (Ownership of Materials and Rights); Section 13 (E-911 Emergency Services Terms); and Section 14 (Miscellaneous).
Interpretation. This EULA and any EULA addenda comprises the entire understanding and all obligations between the End Customer and Five9, and supersedes any prior 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 agreed-to by End Customer and Five9 (e.g., via Service Order). 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 an Order is silent, such silence will not constitute a conflict and the terms and conditions in the Agreement will control.
Publicity. Except to the extent required by law, 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.