Data Processing Addendum
Last updated September 24, 2024
US and Canada only
This Data Processing Addendum (formerly referred to as the Five9 Privacy Addendum), including its Annexes (this “Addendum”), forms the Parties’ agreement with regard to the processing of Personal Information under the Master Services Agreement between customer (“Customer”) and Five9, Inc., having offices at 3001 Bishop Drive, Suite 350, San Ramon, California 94583 USA (“Five9”), for the purchase of Services from Five9 (“Agreement”), which is incorporated by reference. This Addendum may refer to Customer and Five9 each as a “Party” and collectively as the “Parties.”
Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. This Addendum is effective as of the date that the Master Services Agreement between the Parties is executed.
1. DEFINITIONS
1.1 “Personal Information” means “personal information” and “personal data” as defined in the Privacy Laws, that is provided by Customer via the Services and processed by Five9.
1.2 “Privacy Laws” mean all applicable United States and Canadian province, state or federal statutes and regulations pertaining to privacy and information security, including but not limited to: the California Consumer Privacy Act, Cal. Civ. Code 1798.100 et seq., as amended including by the California Privacy Rights Act (the “CCPA”); the Virginia Consumer Data Protection Act, Code of Virginia title 59.1, Chapter 52 (the “VCDPA”); the Colorado Privacy Act, Colorado Rev. Stat. 6-1-1301 et seq. (the “CPA”); the Utah Consumer Privacy Act, Utah Code 13-61-101 et seq. (the ‘“UCPA”); the Connecticut Act Concerning Personal Data Protection and Online Monitoring, Conn. Gen. Stat. 42-515 et seq. (the ‘PDPOM’); the Indiana Consumer Data Protection Act, S.B. 5 (the “INCDPA”); the Iowa Consumer Data Protection Act, S.J. 708, (the “ICDPA”); the Montana Consumer Data Privacy Act, S.B. 384 (the “MCDPA”); the Tennessee Information Protection Act, H.B. 1181 (the “TIPA”); Personal Information Protection and Electronic Documents Act (“PIPEDA”); Personal Information Protection Act (Alberta) (“PIPA Alberta”); Personal Information Protection Act (British Columbia) (“PIPA BC”); An Act Respecting the Protection of Personal Information in the Private Sector (“Quebec Privacy Act”); or any regulations or guidance issued pursuant thereto, and any other applicable United States and Canadian laws or regulations regarding privacy and information security that are in effect or come into effect during the term of the Agreement.
1.3 The terms “business,” “collect,” “consent,” “consumer," “controller,” “process” or “processing,” “processor,” “sensitive data,” and “service provider” shall have the meanings given to those terms in the applicable Privacy Laws to the extent such meanings are materially similar to the meaning of terms in effect upon the execution of this Addendum. In the event of a conflict in the meanings of terms among the Privacy Laws, the Parties agree that only the meanings in applicable Privacy Law(s) will apply.
2. ROLES OF THE PARTIES
For the purposes of the Agreement and this Addendum, Customer is the sole Party that determines the purposes and means of processing Personal Information as the business or controller, and Five9 processes Personal Information on behalf of Customer as the service provider or processor. The details of the processing are provided in Annex 1 of this Addendum, including the duration, nature, and purpose of the processing, and the type(s) of Personal Information subject to the processing.
3. CUSTOMER INSTRUCTIONS
Customer instructs Five9 to process, and Five9 shall process, Personal Information in accordance with the Agreement, any Addendum thereto, any applicable Statement of Work or Service Order, and in compliance with other documented reasonable written instructions provided by authorized personnel of Customer, where such instructions are consistent with the terms of the Agreement. Five9 receives no monetary or other valuable consideration in exchange for Personal Information.
4. PARTIES’ RESPONSIBILITIES
4.1 Each Party is responsible (i) for its own compliance with the Privacy Laws, where applicable; and (ii) with respect to the processing of Personal Information hereunder, for ensuring its employees, agents, and sub-processors understand and comply with the Privacy Laws and this Addendum. Each Party agrees that it will notify the other Party upon determining that it is unable to process Personal Information in compliance with the Privacy Laws.
4.2 Customer shall ensure any processing of Personal Information is in accordance with the requirements of the applicable Privacy Laws. Customer has the sole responsibility for the accuracy, quality, and legality of Personal Information and means by which Customer acquired Personal Information; Customer represents and warrants that it has provided and/or obtained, to the extent required by applicable Privacy Laws, all necessary notices, opt-out rights and/or consent to Personal Information being used and shared for the purposes described herein. Customer shall, in writing, direct any consumer requests to Five9, and (i) verify the identity of the consumer as required by applicable Privacy Laws; (ii) assist in locating Personal Information shared with Five9; and (iii) cooperate in good faith with Five9 to determine whether a request should be complied with or whether any exceptions for compliance with the request apply. Five9 reserves all rights and asserts all exceptions and exemptions to which it is entitled under applicable Privacy Laws (such as preserving Personal Information in order to protect against malicious, deceptive, fraudulent or illegal activity; or to comply with a legal obligation, etc.).
4.3 Taking into account the context of the processing, Five9 will (i) implement and maintain appropriate technical and organizational security measures to safeguard Personal Information as described in Annex 2 (Technical and Organizational Measures Including Technical and Organizational Measures to Secure Data); and (ii) provide the level of privacy protection required by applicable Privacy Laws.
4.4 Five9, its employees, agents, and sub-processors are subject to a duty of confidentiality with respect to Personal Information. Five9 will not (i) “sell” or “share” (as each is defined under the applicable Privacy Laws) Personal Information, (ii) retain, use, or disclose Personal Information outside of Customer’s instructions set forth in Section 3 above or for any commercial purpose not specified in the Agreement, or (iii) when prohibited by applicable Privacy Laws, combine Personal Information received from Customer with Personal Information that Five9 receives from, or on behalf of, another person or persons, or collects from its own interactions with consumers.
4.5 Customer understands and agrees that (i) it may store its customers’ telephone numbers in the Five9 Virtual Contact Center (“VCC”); (ii) storage of Protected Health Information (PHI) in the VCC database (e.g., contact records or agent notes) is strictly prohibited unless Customer orders Five9 encryption Services under an applicable Service Order; and (iii) storage of Payment Card Data in text format (e.g., Payment Card Data within contact records, agent notes, email, chat, SMS transcripts, etc.) is strictly prohibited. Notwithstanding anything to the contrary, Customer may not store designated record sets (as defined by the Health Insurance Portability and Accountability Act) in the VCC.
4.6 Customer, its affiliates, and agents agree that they will at all times (i) configure VCC technical security measures that include password requirements in a manner consistent with relevant industry standards, (ii) administer authentication and authorization based on relevant industry standards including least privilege and individual accountability for all users, and (iii) use only secure protocols as offered by Five9 including encryption of data in transit (e.g., sRTP, VPN, and sFTP) and encryption of call recordings at rest (e.g., Encrypted Storage).
5. SUB-PROCESSORS
5.1 Appointment. Customer acknowledges and agrees that Five9 may engage third-party sub-processors in connection with the provision of the Services. Five9 will enter into a written agreement with each sub-processor containing, in substance, data protection obligations no less protective than those in the Agreement and this Addendum with respect to the protection of Personal Information to the extent applicable to the nature of the Services provided by such sub-processor.
5.2 Notice. Five9 provides its current sub-processors on the Customer Support page at https://login.five9.com (Customer authentication required). Customer hereby consents to these sub-processors.
5.3 Objection. If Customer reasonably objects to Five9’s use of a new sub-processor which would result in Five9’s breach of this Addendum in relation to the protection of Personal Information, Customer shall promptly notify Five9 in writing no later than within thirty (30) days of receipt of Five9’s notice. If Customer so objects to a new sub-processor, and the Parties cannot resolve the objection within a reasonable period of time, which shall not exceed sixty (60) days, Customer may terminate the applicable Service Order(s) with respect to those Services which cannot be provided by Five9 without the use of the objected to new sub-processor by providing written notice to Five9. Five9 will refund Customer any prepaid fees covering the remainder of the term of such Services following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
6. CONSUMER REQUESTS
Taking into account the nature of processing and the information available to Five9, Five9 shall assist Customer by taking appropriate technical and organizational measures, insofar as this is reasonably practicable, for the fulfillment of Customer’s obligations under Privacy Laws to respond to consumers’ requests to exercise their rights.
7. INCIDENT MANAGEMENT AND NOTIFICATION
Five9 shall promptly notify Customer without undue delay, but no later than 72 hours, upon confirmation of unauthorized disclosure, use, or access to Personal Information transmitted, stored or otherwise processed by Five9 (a “Personal Data Breach”). Five9 shall make reasonable efforts to identify the cause of such Personal Data Breach and take such steps as Five9 deems necessary and reasonable to remediate the cause of such Personal Data Breach to the extent the remediation is within Five9’s reasonable control. In accordance with applicable Privacy Laws, Customer has the right, upon reasonable written notice to Five9, to take reasonable and appropriate steps to stop and remediate Five9’s unauthorized use of Personal Information.
8. DATA RETENTION, USE, AND DESTRUCTION
Five9 retains data according to Five9’s data retention practices, which are set forth at https://www.five9.com/legal/dataretention.
9. DATA PROTECTION IMPACT ASSESSMENT
The Services may contain features designed to interoperate with non-Five9 Services (“Non-Five9 Services”). 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 Non-Five9 Services, any interoperation between the Services and 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 fees for Services or other compensation.
10. AUDIT RIGHTS
At Customer’s written request, Five9 shall provide third party attestations demonstrating compliance with its obligations under the Privacy Laws with respect to Personal Information. To the extent such attestations do not adequately address Five9’s compliance with such Privacy Laws, Five9 shall permit and contribute to remote audits of information reasonably necessary to demonstrate Five9’s compliance with its obligations under such Privacy Laws. Customer shall make reasonable efforts to minimize disruption to Five9’s business during any such audit. Such audits shall be conducted during normal business hours and shall occur no more than once per year or in the confirmed event of non-compliance, and be limited to Personal Information. Customer shall provide Five9 written notice of any such audit at least sixty (60) days in advance with a finalized audit scope and evidence request list provided in writing no less than thirty (30) days in advance of such audit.
11. MISCELLANEOUS
11.1 Severability. If any provision of this Addendum shall be found to be void by a court of law, such provision shall be deemed to be severable from the other provisions of this Addendum, and the remainder of this Addendum shall be given effect, as if the Parties had not included the severed provision.
11.2 Survival. All representations, warranties, and indemnities shall survive the termination and/or expiration of this Addendum and shall remain in full force and effect. All of a Party’s rights and privileges — to the extent they are fairly attributable to events or conditions occurring or existing on or prior to the termination and/or expiration of this Addendum — shall survive termination and shall be enforceable by that Party.
11.3 General. The terms and conditions of the Agreement are incorporated by reference into this Addendum with full force and effect. Except as expressly set forth herein, the terms of the Agreement shall remain unmodified and in full force and effect. In the event of a conflict between the terms of the Agreement and the terms of this Addendum, the terms of this Addendum shall control. Headers are for convenience and do not affect the interpretation of the terms of this Addendum.
ANNEX 1: DETAILS OF THE PROCESSING
| Purpose of the processing | Performing the Services on behalf of Customer as set forth in the Agreement, including, but not limited to, the following: Processing: Five9 provides cloud contact center services (including but not limited to automatic call distribution, automated voice recordings and computer integration telephony technology) to Customer. |
| Nature of the processing | Such processing as described in the Agreement, this Addendum, and to enable the Five9 to comply with its obligations and exercise its rights under the Agreement, including collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction processing activities. |
| Types of Personal Information processed | Contact information (incl. name, e-mail address, work extension number and log-in details) of employees of the Customer; Personal Information contained in any content that is hosted or managed on behalf of the Customer (e.g., voice recordings, Customer’s customer database); and as set out in the Agreement, and this Addendum, as evidenced in the communications between the Parties. |
| Types of sensitive data processed | Sensitive data that may be incidentally contained in telephone call recordings or transcripts. |
| Duration of the processing | Five9 agrees to process Personal Information solely as instructed in the Agreement and this Addendum for the duration of the provision of the Services, and the longer of such additional period as: (i) is specified in any provisions of the Agreement regarding data retention; and (ii) is required for compliance with law. |
ANNEX 2: TECHNICAL AND ORGANIZATIONAL MEASURES
1. INFORMATION SECURITY PROGRAM Five9 has implemented and will maintain during the Term an information security program based on ISO/IEC 27001 standards that are applicable to Five9 as a service provider and designed to (i) implement secure methods for processing, transmitting and storing Customer Data, (ii) secure Customer Data against unauthorized access, acquisition, use, or disclosure, and (iii) minimize physical and logical security risks to the Five9 network, including through regular risk assessment and testing (collectively, the “Security Program”). Five9 designates one or more employees to coordinate and be accountable for the Security Program. Five9 conducts periodic reviews of the Security Program, which Five9 may update or modify as it deems necessary. | 8. AVAILABILITY CONTROLS AND BUSINESS CONTINUITY a. Five9 will take measures designed to ensure that data are protected against accidental destruction or loss. These include data backup procedures; uninterruptible power supply (UPS); 24x7 Network Operations Centre (NOC) monitoring; critical jobs monitored for successful completion and error resolution; problem and incident management and response procedures; security incident management and response procedures; and root cause analysis required for problems and incidents affecting production. b. Five9 has and will maintain an appropriate disaster recovery, business continuity and contingency plan and related policies and procedures (collectively, the “Business Continuity Plan”). The Business Continuity Plan will be reviewed by Five9 no less than annually and is designed to provide for continued operation in the event of a catastrophic event affecting Five9’s business operations. c. Five9 will routinely test features of its Business Continuity Plan and will provide a summary report of the results of such tests to Customer upon written request. |
2. FIVE9 CERTIFICATION AND SECURITY STANDARDS a. During the Term, Five9 will maintain an ISO/IEC 27001 certification and SOC 2 Type 2 report (“SOC 2 Report”). b. Upon reasonable written request, Five9 will provide Customer such SOC 2 Report and any other of its currently available certifications. In addition, Five9 will provide its security assessment upon Customer’s reasonable written request. c. As a certified Level 1 Payment Card Industry (PCI) Data Security Standard (DSS) Service Provider, Five9 engages an independent Qualified Security Assessor (QSA) to perform an annual assessment of Five9’s control environment covering all 12 PCI DSS requirements. Upon reasonable written request, Five9 will provide its current PCI attestation letter. | 9. MALICIOUS SOFTWARE a. Five9 will install and maintain a relevant industry standard anti-malware software and, to the extent feasible, use real-time protection features designed to prevent the Services from being infected or affected by the presence of malicious code. b. Five9 will promptly remove malicious code discovered in Five9’s applications or the Services. c. Five9 will perform real-time scanning on files and other data uploaded into the Services to identify and eliminate any files or other data containing malicious code to the extent feasible. d. Five9 will use commercially reasonable efforts to prevent the transmission or the introduction of any malicious code into its applications. |
3. ACCESS CONTROLS TO SYSTEMS Five9 has implemented and will maintain commercially reasonable measures designed to prevent unauthorized access to Five9’s network. These may include the following technical and organizational measures for user identification and authentication: anti-virus protection; stateful inspection firewalls; internal and external vulnerability scans; intrusion detection and prevention systems; least-privilege access to IT systems based on job role and segregation of duties; strong password procedures; no access for guest users or anonymous accounts; and two-factor authentication for privileged IT administrators. a. Penetration Testing. Five9 will perform application penetration tests of its proprietary applications using relevant industry standard practices to detect vulnerabilities in the applications and to measure the effectiveness of the applications’ security controls. Vulnerabilities identified will be tracked and remediated in accordance with Five9’s internal policies to the extent remediation is reasonably feasible and within Five9’s reasonable control. b. Vulnerability Management. Five9 will implement and review no less than annually a comprehensive vulnerability management program for the regular identification, categorization, and timely remediation of technical and process vulnerabilities at the infrastructure and application layers of the application to the extent remediation is feasible and within Five9’s reasonable control. c. Logging. Five9 has and will maintain a log management program based on the NIST 800-92 and provides logging capabilities in accordance with the following: (i) the scope of logging and the retention policy utilize a risk-based approach; (ii) logs will be sufficient to permit forensic analysis on Personal Data Breaches; (iii) logs will record administrative changes to the Services; (iv) log records will be kept physically and virtually secured to prevent tampering; and (v) passwords will not be logged. d. Firewalls. Five9 has and shall maintain intrusion prevention systems. At a minimum, such intrusion prevention systems will include firewalls, which will: (i) be configured to deny access, except for what is explicitly allowed; (ii) restrict publicly accessible systems and wireless access from any internal system that contains Customer Data; and (iii) block all protocols and services that are not required under the Agreement or for other general business purposes. | 10. DISCLOSURE CONTROLS AND DATA ENCRYPTION a. Five9 will take measures designed to prevent the unauthorized access, alteration, or removal of data during transfer, and to ensure that all transfers are secure and are logged. These measures include secure File Transfer Protocol (sFTP) for transport and communication of data, if ordered; and media sanitization and destruction procedures. Customer agrees to order encryption of voice in transit (sRTP or a VPN) if voice data traverses a public network to reach a Customer agent. b. Five9 will implement and utilize encryption based on NIST Special Publication 800-52 encryption guidelines to protect Customer Data in-transit and at rest. Customer acknowledges and agrees that in the event of requiring voice data traversing a public network to reach a Customer agent as part of the Services, Customer shall promptly order Secure Real-time Transport Protocol (sRTP) or a Virtual Private Network (VPN) from Five9. c. Five9 maintains and will maintain a formal process for managing and protecting encryption keys which follow relevant industry standards. |
4. RESTRICTED ACCESS CONTROLS TO DATA Five9 will take measures designed to prevent unauthorized access to Customer Data beyond permitted access rights. These measures may include: a. least-privilege access rights based on job role and segregation of duties; b. management approval required for new or modified access prior to provisioning or change; c. terminated user access promptly disabled from human resources; d. quarterly logical and physical access review for workforce members with access to production; e. quarterly administrator access revalidated by management; f. physical access to the data centers restricted to appropriate individuals; and g. two-factor authentication for privileged IT administrators. | 11. DATA PROCESSING CONTROLS Five9 will take measures designed to ensure that data is processed strictly in compliance with the data exporter's instructions. These must include unambiguous wording of contractual instructions; monitoring of contract performance; and monitoring of service level agreements. |
5. CHANGE MANAGEMENT CONTROLS Five9 will take measures designed to ensure all changes to production systems are logged, tested, and approved. These must include change request and approval required prior to implementation into production; critical application changes tested and approved prior to implementation into production; access to migrate changes into production restricted to appropriate individuals; and critical changes routinely reviewed to confirm appropriateness and authorization. | 12. SEGREGATION CONTROLS Five9 will take measures designed to allow data collected for different purposes to be processed separately. These include restriction of access to data according to job role and segregation of duties; segregation of business IT systems; and segregation of IT testing and production environment. |
6. ACCESS CONTROLS TO PREMISES AND FACILITIES Five9 will take measures designed to prevent unauthorized physical access to premises and facilities holding personal data, which include: a. appropriate physical environmental safeguards; b. on-site backup; and c. appropriate controls designed to ensure that only authorized Five9 personnel are allowed physical access to such facilities which may include access control system; ID reader, chip card; issue of keys; door locking (electric door openers, etc.); video/CCTV monitor; and logging of facility exits/entries. | 13. MEDIA HANDLING Five9 will ensure that relevant industry standard media handling procedures are implemented and maintained. The media will be encrypted, transported in a secure manner, and stored in a location that is physically secure. Devices must be purged, degaussed, or physically destroyed, so that data cannot be reconstructed based on disposition protocols defined within NIST 800-88 Media Sanitation Standard. Five9 shall ensure proper documentation or certificate of destruction of the disposal of any hardware or media (such as, but not limited to tape drives, thumb drives, diskettes, CD’s, DVD’s, laptop drives, workstation drives or server drives) that stores Customer Data. |
7. DATA RETENTION Five9 will: a. maintain Customer Data and store it in a location and format available for retrieval in accordance with Five9’s data retention policy as set forth at https://www.five9.com/legal/dataretention; b. have specific procedures in place governing access to copies of Customer Data in connection with a legal action or regulatory requirement to disclose; c. review and test data recovery procedures on a routine basis or when a material change occurs; and d. log data restoration efforts, including the person responsible, the description of the restored data and which data (if any) had to be input manually in the data recovery process. | 14. HUMAN RESOURCES SECURITY Five9 provides information security, regulatory compliance, and privacy training to all of its employees that handle Customer Data to support a common understanding of applicable data protection laws and regulations, as well as how to detect and report security issues. Such training shall: a. include secure handling protocols when handling Customer Data; b. be provided at the time of hire and annually thereafter; and c. be documented with the names of the employees who completed the training and the dates the training was completed. Furthermore, Five9 personnel with access to Customer Data will also be subject to confidentiality obligations. |
