Required Terms

Services and Use

“Services” means the proprietary hosted virtual call center software and system provided by Five9, Inc. (“Five9”). Customer agrees not to (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Services available to any third party in any way; (ii) reverse engineer, modify or make derivative works based upon the Services; (iii) input personally identifiable information or other sensitive or protected information into the virtual contact center database fields other than phone numbers; or (iv) use the Services for any purpose other than to support its call center business.

Data Use and Retention

During the normal operation of the Services, Five9 will collect and store on its systems certain information and data provided or collected by the Customer (“Customer Data”). Customer authorizes Five9 to store Customer Data on its secure internal systems and to use and copy Customer Data solely for the purpose of providing the Services to Customer. Additionally, Customer agrees that Five9 may use non-individually identifiable Customer Data in perpetuity to test, analyze and improve the Services. Five9 will not resell or share any Customer Data with a third party without Customer’s express written authorization. Five9 retains the right to periodically purge Customer Data from Five9’s servers to maximize system performance as set forth and can be found at www.five9.com/4433.

No Requirement to Offer Emergency Services

Customer understands and acknowledges that Five9 does not and is not required to provide Emergency Service, where “Emergency Service” is defined as services that connect a user to emergency services personnel or a public safety answering point ("PSAP"), pursuant to applicable regulatory requirements. In the United States, Emergency Service is provided by dialing the digits "911" on a wired or a wireless telephone. Services provided by Five9 do not permit the dialing of "911" or any other emergency telephone numbers. Services are not telephone or telecommunications services that can provide a connection to emergency services personnel or a PSAP under any circumstances. Customer recognizes and agrees that Five9 is not required to offer Emergency Service, pursuant to any applicable laws, rules or regulations. Customer further recognizes and agrees that Five9 is not a replacement for Customer's primary telephone service. CUSTOMER ACKNOWLEDGES AND ACCEPTS THAT FIVE9'S SERVICES DO NOT INCLUDE EMERGENCY SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT ADDITIONAL ARRANGEMENTS WITH A THIRD PARTY MUST BE MADE BY CUSTOMER TO ACCESS EMERGENCY SERVICE.

Specific Disclaimer of Liability for Emergency Service

Five9 does not provide Emergency Service in conjunction with the Services or any other services that may be used by Customer in connection with the Five9's Services. Neither Five9, its officers, directors, employees, shareholders, affiliates nor agents will be liable for any claim, damage, or loss arising from, or relating to, Customer’s use of the Five9's Services or any other service provided hereunder to contact a PSAP or Emergency Services personnel. Customer specifically waives, to the maximum extent permitted by applicable law, any and all such claims or causes of action, arising from or relating to the Five9's Services or any other service provided hereunder to contact a PSAP or other Emergency Services personnel. Customer agrees to defend, indemnify, and hold harmless Five9, its officers, directors, employees, shareholders, affiliates and agents from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, court costs and attorneys’ fees) arising out of the fact that Five9 does not offer Emergency Service.

Legal and Regulatory Compliance

Customer agrees to comply with all federal, state and/or local law related to or connected with providing, selling, licensing and delivering information services and telecommunications services and products. Customer assumes all liability and responsibility for its use of the Services in compliance with any federal, state or local laws, rules or regulations pertaining to the use of telephones, email, fax, automated telephonic equipment (e.g. “Predictive Dialer”) and other telephony and telecommunications products and services. Customer’s limitations on its use of the Services may include but are not limited to: advertisements; delivering artificial or prerecorded telephonic messages to homes without the prior consent of the called party; and restrictions on the time of day in which such calls are permissible. A violation of any such laws may result in substantial penalties and other sanctions. Any person intending to use the Services for solicitation purposes and/or for any other purpose regulated by federal, state or local laws should consult with his or her own legal counsel, prior to entering into this Agreement to determine the extent of permissible activities. Customer agrees that Five9 will not be responsible for Customer's illegal or fraudulent use of the Services, and Customer indemnifies Five9 for any claims, liabilities or expenses (including attorneys’ fees) incurred by Five9 based upon Customer’s illegal or fraudulent use of the Services.

Suspension or Termination by Five9

Five9 may suspend or cancel Customer’s access to the Services if Five9 has a good faith belief that Customer (x) is using the Services in a manner that may cause immediate and ongoing harm to Five9 or to a third party, including but not limited to, actions that violate federal, state or local laws, rules or regulations, such as compliance with "Do Not Call Lists"; (y) is compromising the security of the Services and the privacy of Five9's other customers; or (z) is engaging in other activity not specifically identified herein that could reasonably be construed as causing or potentially causing harm to Five9 or a third party.

Consents

Customer is solely responsible for obtaining the consent of or a release from those persons or entities, to whom or to which Customer intends to send communications using the Services. Customer agrees to periodically review the list of recipients to be contacted, to contact only those persons who the Customer is legally permitted to contact from Customer’s customer data, and only in the manner permitted, under federal, state and local law, and to delete those recipients that no longer wish to receive communications from Customer.

"Do Not Call" Compliance

If Customer is advised by any party that they do not wish to receive communications from Customer via the Services, then Customer agrees to promptly add those parties to its internal company-specific Do Not Call List in the Services account, and thereafter refrain from calling such parties until such time as Customer’s policies require.

Call Recordings

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

Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL FIVE9 BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR OTHER SIMILAR GENERAL DAMAGES, LOSSES OR COSTS ARISING OUT OF OR RELATING TO THIS AGREEMENT NOR SHALL FIVE9’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED ALL FEES PAID BY CUSTOMER FOR ANY FIVE9 SERVICES IN THE ONE (1) YEAR PERIOD PRIOR TO THE DATE OF THE EVENT THAT GAVE RISE TO THE LIABILITY.

Disclaimer of Five9 Warranties

FIVE9 IS PROVIDING THE SERVICES AS HOSTED SERVICES AND THE SERVICES ARE DELIVERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FIVE9 DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR THAT ALL COMMUNICATIONS WILL BE DELIVERED, NOR DOES FIVE9 MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES. FIVE9 MAKES NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICES. Customer

understands that the Services may be inaccessible or inoperable due to scheduled periodic maintenance and upgrades pursuant, or for reasons beyond Five9's reasonable control including but not limited to (i) Customer or Five9 equipment malfunctions; or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to Five9’s or the Customer’s data centers.

 

Ownership of Materials and Rights

All rights not granted by Five9 herein are expressly reserved. The Services are proprietary to Five9 and are protected by intellectual property laws and international intellectual property treaties. Except for the access to and use the Services granted to Customer in this Agreement, nothing in this Agreement shall convey, transfer or assign any right, title or interest in the Services to Customer.