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
“Customer Data” is any identifiable information or data collected or provided by Customer to Five9 via the Services. During the Term, Customer authorizes Five9 to store Customer Data on its secure internal systems and to use and copy Customer Data for the purpose of providing the Services (including technical support) to Customer in accordance with this Agreement. Customer authorizes Five9 to use non-individually identifiable 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 Customer Data with an unauthorized third party. Five9 retains the right to periodically purge Customer data from Five9 servers according to the data retention practices are set forth at www.five9.com/4433. 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.
E-911 Emergency Services Terms
a. 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.
b. 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.
c. 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 CANNOT BE RE-ROUTED TO THE APPROPRIATE PSAP DUE TO LACK OF CORRECT OR VALID LOCATION INFORMATION.
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.
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. 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. 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, Customer agrees that it is not subject to U.S. economic sanctions, and will not directly or indirectly 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). 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.
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.
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.
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.
Integrations and Inter-operability
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.
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.