Five9 End User License Agreement
This Five9 End User License Agreement (“EULA”) is a binding legal agreement between Five9, Inc. (“Five9”), a Delaware corporation and provider of a cloud-based virtual contact center and related services (e.g., subscriptions, professional services and/or telecommunication services) (collectively, the “Services”), and you (the legal entity you represent) whose details are either directly received by Five9 upon purchase (“Customer”) or provided to Five9 via a Five9-authorized reseller (“Reseller”). Customer agrees to be bound by this EULA through its express agreement to this EULA (“Acceptance”).
PLEASE READ THIS EULA CAREFULLY BEFORE USING THE SERVICES. BY USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT USE THE SERVICES, AND, IF PRESENTED WITH THE OPTION TO “AGREE” OR “DISAGREE” TO THE TERMS, CLICK “DISAGREE.”
1. SERVICE ORDERS; ACTIVATION
“Service Order” means the executed ordering document that sets forth Customer’s authorized scope and use of the Services and shall include the pricing metrics, quantity, fees, and the Services, as well as any terms applicable to the Services ordered. Prior to the activation of the Services, Five9 shall have received any applicable activation or implementation fees and long-distance deposits.
2. TERM AND TERMINATION
a. Term of this EULA. The term of this EULA shall commence on the date of Customer’s Acceptance to this EULA (the “Effective Date”) and shall continue until all Services made available pursuant to Service Orders under this EULA have expired or been terminated (the “Term”).
b. Termination for Breach. Either party may terminate this EULA upon thirty (30) days’ written notice to the other party in the event of a material breach of this EULA by the other party, provided that such breach remains uncured at the expiration of such thirty (30) days.
c. Termination for Bankruptcy. Additionally, either party may terminate this EULA 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.
d. Suspension or Termination by Five9. Customer acknowledges and agrees that 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 violation of this EULA or 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 (Sections 2.b. (Termination for Breach) or 2.d (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 credit or refund.
e. Effect of Termination. Upon termination of this EULA, all rights granted hereunder shall immediately terminate and Customer shall have no right to continue to access or use the Services, and each party shall, at the written request of the other party, destroy or return all Confidential Information (as defined below) of the other party 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). Customer will (i) be responsible for its use of Customer Data (defined below) with the Services and its users’ compliance with this EULA and the Service Orders; (ii) be responsible for the accuracy and quality of and the means by which Customer acquired the Customer Data; (iii) use the Services only in accordance with this EULA and Service Orders; (iv) be responsible 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) be responsible for 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) be responsible for obtaining, maintaining, and the performance of the internet connectivity related to its use of the Services under this EULA.
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; or (iii) use the Services for any purpose other than to support its internal call center or business process outsourcing. Customer understands and agrees that (A) it may store its customers’ telephone numbers in the Five9 Virtual Contact Center (“VCC”); (B) 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 (C) storage of Payment Card Data in text format is strictly prohibited (e.g., Payment Card Data within contact records, agent notes, email, chat, SMS transcripts, etc.).
4. CONFIDENTIAL INFORMATION
a. The parties agree to hold each other’s Confidential Information (defined below) in strict confidence during the term of this EULA and take all reasonable steps to ensure that the disclosing party’s Confidential Information is not disclosed or distributed in violation of this EULA. The receiving party agrees not to (i) disclose the disclosing party’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 the party seeking to make such disclosure shall notify the other party, if legally permitted, of its intent to make such disclosure so that the disclosing party may seek protective treatment, to the extent reasonably available, for such Confidential Information); or (ii) use the disclosing party’s Confidential Information for any purpose beyond the scope of this EULA other than with the express prior written consent of the disclosing party. Except as otherwise stated in this EULA, 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 this EULA.
b. Receiving party’s obligations pertaining to Confidential Information shall not apply to information that the receiving party can document: (i) is or becomes part of the public domain through no act or omission of the receiving party, (ii) was in the receiving party’s lawful possession prior to the disclosure, (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure, or (iv) is independently developed by the receiving party 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 this EULA, nothing in this EULA 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 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 this EULA, and 6.a.(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(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 according with Five9’s data retention practices as set forth at https://www.five9.com/legal/dataretention.
b. Five9 retains all ownership of artificial intelligence (AI) features and functionality within the Services (collectively, the “AI Services”) including any associated documentation, algorithms, machine learning models, tools, modifications, improvements, adaptations, annotations, or derivative works thereof which, in any case, shall not include Customer Data.
c. Certain aspects of the AI Services may utilize third party service providers, and Customer authorizes and consents to Five9 sharing Customer Data with such service providers solely for the purposes described in Section 6.a.(i) above. For clarity, such third-party service providers shall not be permitted to use Customer Data to develop, train, optimize, and improve their own services.
d. For AI Services involving Google as a sub-processor, Five9 may need 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 Services. In the event that such consent is not received, Five9 will notify Customer, and the corresponding AI Services will automatically terminate.
e. Use of AI Services utilizing technology from Google requires that Customer complies with Google’s acceptable use policy (currently available at https://cloud.google.com/terms/aup) (“Google’s AUP”). Customer will immediately remedy any alleged non-conformance with Google’s AUP upon receipt of notice, and failure to so remedy may result in Customer’s suspension and/or termination of the relevant AI Services.
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 persons who 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 this EULA 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
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 Service fees or other compensation.
10. WARRANTY
a. Representations and Warranties. Each party represents and warrants that (i) it has the corporate power and authority to enter into and perform its obligations under this EULA; and (ii) it will comply with all applicable laws in performing its obligations under this EULA.
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. INDEMNIFICATION
a. By Five9. Five9 will defend Customer and its employees (“Customer Indemnitees”) from and against any action, claim, or proceeding brought against them by a third party and will indemnify Customer Indemnitees for any finally-awarded damages and costs, including reasonable attorney’s fees, arising out of or relating to: (i) personal injury or tangible personal property damage to the extent arising from negligent or willful acts or omissions of Five9 and/or its employees or agents under this EULA, and (ii) any claim of infringement by the Five9 Services of any patent, trademark, copyright, or trade secret, provided Customer is using the Services as authorized under this EULA. If such an infringement claim is made or is likely to be made, Five9 shall, at its own expense and sole discretion, exercise one of the following options: (x) obtain for Customer the right to utilize the Services provided hereunder and consistent with this EULA; (y) replace or modify such Services so they are non-infringing and consistent with this EULA; (z) terminate the applicable Services that cannot be performed without the use of such infringing Services without liability for such termination other than the ongoing indemnity obligation hereunder and refund Customer all prepaid but unused fees for Services prorated from the date Customer no longer has effective use of such Services.
b. By Customer. Customer will defend Five9 and its employees (“Five9 Indemnitees”) from and against any action, claim, or proceeding brought against them by a third party, and will indemnify Five9 Indemnitees for any finally-awarded damages and costs, including reasonable attorney’s fees, arising out of or relating to: (i) personal injury or tangible personal property damage to the extent arising from negligent or willful acts or omissions of Customer and/or its employees or agents under this EULA; (ii) Customer’s unauthorized or incorrect use, operation, or modification of any e911 Services (as defined below) provided under this EULA including claims arising from Customer’s failure to provide location data necessary for proper e911 call routing; and (iii) Customer’s unauthorized, illegal, or fraudulent use of the Services.
c. Procedure. As a condition to the obligations of this Section above, an indemnified party shall (i) provide timely notice of a claim for which it seeks indemnification (although untimely notice will relieve the indemnifying party only to the extent it is prejudiced as a result of such failure to notify) and permit the indemnifying party to defend or settle any such claim, provided, however that: (x) the indemnifying party shall not enter into any settlement that would result in any admission by the indemnified party, payment by the indemnified party, or additional liabilities to third parties without the indemnified party’s prior written consent which shall not be unreasonably withheld or delayed, and (y) the indemnified party may at its election participate in, but not control, the defense of such claim, suit or the like through separate counsel at its own expense; and (ii) provide the indemnifying party with all reasonable assistance (at the expense of the indemnifying party) in connection with the defense or settlement of any such claim, suit or the like. If an indemnifying party opts not to assume the defense of any such claim within sixty (60) days’ notice of such claim, the indemnified party may assume the defense of such claim at the cost and risk of the indemnifying party. Each party will reimburse the other party for all reasonable costs incurred to the extent requested or required to assist the other party as part of a compulsory process seeking information regarding whether the other party has violated any applicable laws (e.g., responding to subpoenas, interrogatories, participating in depositions, and any other forms of discovery or legal process).
12. LIMITATION OF LIABILITY AND DAMAGES
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, LOSSES OR COSTS, ARISING OUT OF OR RELATING TO THIS EULA. ADDITIONALLY, NEITHER PARTY SHALL 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.
EXCEPT FOR CLAIMS TO THE EXTENT BASED ON A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR CUSTOMER’S MISAPPROPRIATION OF FIVE9’S SERVICES, PRODUCTS, SOLUTIONS, OR PROPRIETARY MATERIALS, IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS EULA EXCEED: (A) FOR INDEMNIFICATION CLAIMS, TWO TIMES (2X) THE FEES PAID OR PAYABLE BY CUSTOMER TO FIVE9 IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY; (B) FOR ALL OTHER CLAIMS, THE FEES PAID OR PAYABLE BY CUSTOMER TO FIVE9 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.
13. 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 or Canada 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.
14. 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.
c. Notwithstanding anything to the contrary in this EULA, 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.
15. MISCELLANEOUS
a. Jurisdiction. This EULA shall be governed by the laws of the State of California without reference to conflicts of laws. Venue for any and all actions arising out of this EULA shall be San Francisco, California.
b. Force Majeure. Except for payment obligations, neither party shall be held liable or responsible to the other party nor be deemed to have breached this EULA for failure or delay of performance under this EULA when caused by or resulting from causes beyond the reasonable control of the affected party, provided, however, that the party so affected promptly notifies the other party of the force majeure event and takes reasonable commercial efforts to avoid or remove such causes of nonperformance, and when they are removed, continue performance under this EULA.
c. Privacy and Security. The Five9 Privacy Addendum available at https://www.five9.com/legal/privacy-addendum applies to Customer’s use of the Services and Five9’s provision of Services.
d. Protected Health Information. To the extent required by the provisions of HIPPA (as defined in the BAA referenced below), in the event the Services provided hereunder involve the creation, receipt, maintenance, or transmission of “Protected Health Information” or “PHI” (as defined in 45 CFR § 160.103 of HIPAA) by Five9, the parties agree to incorporate the Five9 Business Associate Agreement ("BAA"), available at https://www.five9.com/legal/customerbaa, by reference into this EULA. In the event of any conflict between the terms of the BAA and this EULA, the BAA will prevail only to the extent of such conflict.
e. 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 this EULA, and Five9 shall be responsible for such actions of its sub-processors.
f. Assignment. Except as provided herein, neither party may transfer or assign this EULA or any of its rights and obligations under this EULA without the other party’s prior written consent except that either party may assign this EULA in its entirety to a successor in interest without requiring such consent in the event of a reorganization, merger, consolidation, or sale of all or substantially all of its assets or stock.
g. Notices. All legal notices, authorizations, and requests in connection with this EULA 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 billing@five9.com) or mail at its then-current corporate headquarters and to Customer at its most current street and/or email address(es).
h. 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 this EULA 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 EULA remains enforceable. In the event of a dispute arising out of this EULA, the prevailing party shall be entitled to recover its reasonable attorneys’ fees. This EULA does not grant any right or cause of action to any third party. The following sections will survive expiration or termination of the EULA: Section 3 (Access Controls and Use Restrictions); Section 4 (Confidential Information); Section 5 (Proprietary Rights); Section 6 (Data Use and Retention); Section 11 (Indemnification); Section 12 (Limitation of Liability and Damages); 13 (Emergency Services Terms); and Section 15 (Miscellaneous).
i. Interpretation. The parties agree that this EULA comprises the entire understanding and all obligations between them and supersedes any prior agreements, including non-disclosure agreements, prior discussions, or correspondence with respect to the subject matter of this EULA. No amendment of this EULA will be binding unless signed by Customer and Five9. All rights and permissions relating to use and access to the Services that are not expressly granted by Five9 in this EULA are reserved by Five9 and outside the permitted scope of use under this EULA.
j. Verification Rights. During the Term and for a period of twelve (12) months after this EULA expires or is terminated, Customer will take reasonable steps to maintain complete and accurate records of Customer’s use of the Services sufficient to verify compliance with this EULA (“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.
k. Publicity. Neither party shall make, or cause to be made, any press release or public announcement in respect of the transactions contemplated by this EULA, or otherwise communicate with or through any news or other media without the prior written consent of the other party.
