Please note: This document only applies to customers with the Five9 Inc product and does not apply to other contact centre products and solutions from Babble.
Services. “Services” means the proprietary hosted virtual call center software and system provided by Five9, Inc. (“Five9”).
Use Restrictions. 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) modify or make derivative works based upon the Services; (iii) create unauthorized Internet “links” to the Services or “frame” or “mirror” any content on any other server or wireless or Internet-based device; or (iv) reverse engineer 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.
Data Use. 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 for internal business purposes, solely 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.
Data Retention. Due to the storage demands on the Services, Five9 retains the right to periodically purge Customer Data from Five9’s servers to maximize system performance. Five9’s data retention practices are 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 Five 9’s Services or any other service provided hereunder to contact a PSAP or Emergency Services personnel. Customer specifically Five9, Inc. Reseller Agreement Page 2 of 3 October 2018
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 Five 9 does not offer Emergency Service.
Legal and Regulatory Compliance. Customer agrees to comply with all applicable statutes, regulations, regulatory requirements, whether by law, ordinance, subordinate legislation, or other (regardless of its source), mandatory guidance, or code of practice (including in each case any judicial or administrative interpretation of it) in force from time to time in any applicable jurisdiction (“Applicable 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 Applicable Law 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.
Consents. Customer is solely responsible for providing notice and obtaining any required consents or releases from those persons or entities pursuant to Applicable Law, 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.
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. Five9, Inc. Reseller Agreement Page 3 of 3 October 2018
Ownership of Materials and Rights. The Services is proprietary to Five9 and are protected by intellectual property laws and international intellectual property treaties. Customer Data and Customer’s text, recorded messages and/or voice conversations transmitted over the Services are proprietary to Customer. 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. The Services are not sold. All rights not granted by Five9 herein are expressly reserved.
Indemnity. Customer agrees to indemnify, hold harmless and defend Five9, its shareholders, directors, officers, employees and agents from and against any action, claim, or damage, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to: (i) Customer’s gross negligence in connection with this Agreement or use of the Services; (b) any breach or alleged breach of Customer’s representations and warranties; or (c) any breach or alleged breach of Customer’s obligations to comply with Applicable Law or these aforementioned terms and conditions provided that Five9 (x) promptly notifies Customer of such claim in writing, (y) permits Customer to defend or settle any such claim, and (z) provides the indemnifying party all reasonable assistance in connection with the defense or settlement of any such claim, suit or the like.