These Five9, Inc. (“Five9”) Required Terms (“Required Terms”) form part of the purchase agreement between you (the legal entity you represent) (“Customer”) and the Five9-authorized reseller (“Reseller”) that governs Customer’s use and access to the Services (defined below).
“Services” means Five9’s cloud-based virtual contact center and related services (e.g., subscriptions, professional services and/or telecommunication services) that Customer orders from the Reseller.
2. SUSPENSION AND TERMINATION BY FIVE9
a. Termination for Breach. Five9 may terminate Customer’s access to the Services upon thirty (30) days’ written notice in the event of a material breach of these Required Terms by Customer, provided that such breach remains uncured at the expiration of such thirty (30) days.
b. Termination for Bankruptcy. Additionally, either party may terminate these Required Terms if the other party becomes insolvent, files a voluntary petition in bankruptcy, is adjudicated bankrupt, has a receiver 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.
c. Suspension or Termination by Five9. Five9 may immediately suspend Customer’s access to the Services if Five9 has a good faith belief that Customer is using the Services as follows: (i) in violation of applicable laws and/or government regulations; or (ii) in a manner that is compromising the security or operability of the Services. If it is confirmed that Customer is using the Services as described in (i) above, Five9, in its sole discretion, may immediately terminate the Services without providing Customer an opportunity to cure and with respect to (ii), Five9 will notify Customer in writing and provide a reasonable time to cure prior to termination. Resumption of Customer’s account following suspension or termination by Five9 is subject to the sole discretion of Five9. Customer’s resumption of access to the Services following a suspension or termination 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 fees for Services or other compensation.
d. Effect of Termination. Upon termination of Customer’s access to the Services, all rights granted hereunder shall immediately terminate and Customer shall have no right to continue to access or use the Services, and Customer shall, at the written request of Five9, destroy or return all Confidential Information (as defined below) of Five9 in its possession or control.
3. ACCESS CONTROLS AND USE RESTRICTIONS
a. Access Controls. Customer has sole responsibility and control over access to the domain, account, and/or password(s), including, (i) its use of Customer Data (defined below) with the Services and its users’ compliance with these Required Terms; (ii) the accuracy, quality, and means by which Customer acquired the Customer Data; (iii) using the Services in accordance with these Required Terms; (iv) responsibility for 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 and maintaining the performance of the internet connectivity related to its use of the Services under these Required Terms.
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; (iii) use the Services for any purpose other than to support its internal call center or business process outsourcing. Customer may store its customers’ telephone numbers in the Five9 Virtual Contact Center (“VCC”). Customer understands and agrees that any other storage usage in the VCC (e.g., storage of call recordings, email, chat, or SMS transcripts) is strictly prohibited unless Customer orders the appropriate Five9 encryption Services under an applicable Service Order. 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. CONFIDENTIAL INFORMATION
a. Customer shall hold Five9’s Confidential Information (defined below) in strict confidence while Customer has access to the Services. Customer shall not (i) disclose Five9’s Confidential Information to any third party (excluding affiliates and/or subcontractors who have a need to know and are bound by 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 Customer shall notify Five9 in writing, if legally permitted, of its intent to make such disclosure so that Five9 may seek protective treatment); or (ii) use Five9’s Confidential Information for any purpose beyond the scope of these Required Terms other than with the express prior written consent of Five9. Except as otherwise stated in these Required Terms, Customer further agrees that Five9 may disclose Confidential Information of Customer to Five9’s service providers for compliance 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 these Required Terms.
b. Customer’s obligations pertaining to Confidential Information shall not apply to information that the Customer can document: (i) is or becomes part of the public domain through no act or omission of the receiving party, (ii) was in Customer’s lawful possession prior to the disclosure, (iii) is lawfully disclosed to Customer by a third party without restriction on disclosure, or (iv) is independently developed by Customer without access to or use of the disclosing party’s Confidential Information.
5. PROPRIETARY RIGHTS
The Services, Five9 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, 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 these Required Terms, nothing in these Required Terms 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 Customer’s data and information provided by Customer via the Services to Five9 and processed by Five9. Customer retains all ownership of its Customer Data and instructs and grants Five9 a worldwide right to use Customer Data 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 these Required Terms, and (ii) develop, 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) 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 AI Features and AI Optimization Data, including any associated documentation, algorithms, machine learning models, tools, modifications, improvements, adaptations, annotations, or derivative works thereof. “AI Features” means any AI functionality included or provided with the Services. “AI Optimization Data” is any performance data or metrics, aggregated information, learnings, or processes included in or developed by or via the use of AI Features.
c. Customer acknowledges that certain aspects of the AI Features may utilize third party service providers, and Five9 may share Customer Data with such service providers so that they may use Customer Data for the purposes described in Section 6.a.(i) above. Such service providers may host or process the Customer Data in different locations than the other Five9 Services, including outside of the United States depending on the service providers utilized by Customer. Customer hereby authorizes and consents to such hosting or processing.
d. The technology used to provide the AI Features allows Five9 to identify Customer to Google upon Google’s request. When Google makes such a request, Customer acknowledges that Five9 must (i) provide Customer’s name to Google, and (ii) receive Google’s written consent for Customer to access the AI Features. In the event that such consent is not received, Five9 will notify Customer, and the corresponding Service Order(s) will automatically terminate, without penalty, with respect to the AI Features only.
e. Use of AI Features utilizing technology from Google requires that Customer complies with Google’s acceptable use policy (currently available at https://cloud.google.com/terms/aup). Customer will immediately remedy any alleged non-conformance with such acceptable use policy upon receipt of notice of the same from Five9. Customer acknowledges that failure to comply with such acceptable use policy may result in Customer’s suspension from the relevant AI Features and/or termination of any Service Orders related to the same.
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 such do-not-contact requests, including where possible by adding the party to its internal do not call list, and thereafter refrain from calling that party. Customer is solely responsible for obtaining any required consent of or a release from persons or entities to whom or to which Customer intends to send communications using the Services. Customer agrees to contact only those parties that 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) recordings and transcripts of such calls are 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. Customer agrees that when using the call recording features, it will comply with all notice, consent, and privacy requirements pursuant to any applicable laws.
8. EXPORT CONTROLS
All Services provided under these Required Terms are subject to U.S. export control laws and regulations and may be subject to export or import requirements in other countries. Customer acknowledges its obligation under and agrees to comply strictly, at its own expense, with all such laws and regulations, including without limitation the U.S. Export Administration Regulations. Customer shall not directly or indirectly export or reexport Services without the express written permission of Five9 and, when necessary, a U.S. government license. In particular, Customer agrees that it will not directly or indirectly export or reexport the Services to countries or regions subject to U.S. economic sanctions (e.g., Cuba, Crimea, Iran, North Korea, Sudan, and Syria). 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.
9. INTEGRATIONS AND INTEROPERABILITY
a. Representations and Warranties. Customer represents and warrants that (i) it has the corporate power and authority to enter into and perform its obligations under these Required Terms; and (ii) it will comply with all applicable laws in performing its obligations under these Required Terms.
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, 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, NON-INFRINGEMENT, 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 or for reasons beyond Five9’s reasonable control including, but not limited to, (i) Customer equipment or network malfunctions; or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to Five9’s or Customer’s data centers.
11. LIMITATION OF LIABILITY AND DAMAGES
IN NO EVENT SHALL FIVE9 BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, LOSSES OR COSTS, ARISING OUT OF OR RELATING TO THESE REQUIRED TERMS. ADDITIONALLY, FIVE9 SHALL NOT BE LIABLE FOR ANY CLAIMS RELATING TO: (i) LOSS OR CORRUPTION OF DATA; (ii) INABILITY TO ACCESS THE SERVICES; (iii) PERFORMANCE-RELATED DELAYS; (iv) COMPUTER VIRUSES; (v) NON-DELIVERY OR MIS-DELIVERY OF COMMUNICATIONS; AND (vi) LOSS OR LIABILITY RESULTING FROM ACTS BEYOND A PARTY’S CONTROL.
IN NO EVENT SHALL FIVE9’S LIABILITY UNDER THESE REQUIRED TERMS EXCEED THE SERVICE FEES PAID OR PAYABLE BY CUSTOMER FOR THE FIVE9 SERVICES GOVERNED BY THESE REQUIRED TERMS 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.
12. EMERGENCY SERVICES TERMS
a. Emergency Services Not Provided for Non-United States and Non-Canada Domains. Customer fully understands and acknowledges that the Services do not support access to emergency organizations for non-United States and non-Canada domains, and Five9 makes no representation or warranty that the Services are capable of the same. For non-United States and non-Canada domains, Customer shall ensure at all times it has provided to it separate or alternative electronic communications services which do provide access to emergency organizations using standard emergency call numbers.
b. Emergency Services for United States and Canada Domains.
i. Customer e911 Responsibilities and Limitations. Customer understands that to the extent any e911 services are offered as part of the Services for United States domains (“e911 Services”), such e911 services will not function or will not function properly: (A) if an end-user attempts a 9-1-1 call from a location different from the end-user’s then-current address provided to Five9’s e911 service provider by Customer; (B) during any disruption of power at Customer’s location; (C) during any disruption of internet connectivity to Customer’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 address information is provided or is not updated accurately; or (G) if Customer 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 SPECIFICALLY WAIVES 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, TO CORRECT ANY FAILED CUSTOMER e911 CALLS, INCLUDING, BUT NOT LIMITED TO, THOSE THAT ARE A RESULT OF INVALID OR INCOMPLETE END-USER LOCATION DATA; ARE A RESULT OF INTERRUPTIONS IN VOICE CONNECTIVITY; OR WHICH CANNOT BE RE-ROUTED TO THE APPROPRIATE PSAP DUE TO LACK OF CORRECT OR VALID LOCATION INFORMATION.
13. BETA AND EVALUATION SERVICES
a. If Five9 grants rights to use the Services on a trial, evaluation, beta, or other similar basis (“Evaluation Services”), Customer may only use the Evaluation Services on a temporary basis for the period specified by Five9 in writing.
b. Five9, in its discretion, may stop providing the Evaluation Services at any time, at which point Customer will no longer have access to any related data, information, and files, and must immediately cease using the Evaluation Services.
Notwithstanding anything to the contrary in these Required Terms, the Evaluation Services may contain bugs, errors, or other issues, and Five9 provides Evaluation Services “AS IS” without any indemnity or warranty, express or implied. Five9 has no liability relating to Customer’s use of the Evaluation Services, which is at Customer’s sole risk and liability. Unless agreed in writing by Five9, Customer will not put Evaluation Services into production use.
a. Force Majeure. Five9 shall not be held liable or responsible or be deemed to have breached these Required Terms for failure or delay of performance hereunder when caused by or resulting from causes beyond the reasonable control of Five9; provided, however, Five9 has taken reasonable commercial efforts to avoid or remove such causes of nonperformance, and when they are removed continue performance hereunder.
b. 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 these Required Terms, and Five9 shall be responsible for such actions of its sub-processors.
c. Notices. All legal notices, authorizations, and requests in connection with these Required Terms 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 email@example.com) or mail at its then-current corporate headquarters and to Customer at its most current street and/or email address(es).
d. 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 these Required Terms 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 Required Terms remain enforceable. In the event of a dispute arising out of these Required Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees. These Required Terms do not grant any right or cause of action to any third party. The following sections will survive expiration or termination of these Required Terms: Section 3 (Access Controls and Use Restrictions); Section 4 (Confidential Information); Section 5 (Proprietary Rights); Section 6 (Data Use and Retention); Section 11 (Limitation of Liability and Damages); 12 (Emergency Services Terms); and Section 13 (Miscellaneous).
e. Verification Rights. While Customer has access to the Services and for a period of twelve (12) months after these Required Terms expire or terminate, Customer will take reasonable steps to maintain complete and accurate records of Customer’s use of the Services sufficient to verify compliance with these Required Terms (“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.
f. Publicity. Customer shall not make, or cause to be made, any press release or public announcement in respect of the transactions contemplated by these Required Terms or otherwise communicate with or through any news or other media without the prior written consent of Five9.