Five9 Data Processing Addendum for Sub-processors

Last updated Nov 6, 2023

This Data Processing Addendum, including its Annexes (this “Addendum”), forms part of the agreement between Five9 and sub-processor (“Sub-processor”) for the provision of services (the “Services”) to Five9 by Sub-processor (the “Services Agreement”). This Addendum may refer to Sub-processor and Five9 each as a “Party” and collectively as the “Parties.”

Five9 has entered into a Master Services Agreement (“MSA”) with each of its customers (each, a “Customer”) for the provision of services to Customer by Five9, under which Five9 may process Personal Information (as defined below) on behalf of Customer and its affiliates, and may engage sub-processors in furtherance of such processing. This Addendum applies when Sub-processor, in providing the Services to Five9 under the Services Agreement, processes Personal Information.

Capitalized terms not otherwise defined herein shall have the meaning given to them in the Services Agreement. This Addendum is effective as of the Effective Date of the Services Agreement.

1. DEFINITIONS

1.1 “Personal Information” means “personal information” and “personal data” as defined in the Privacy Laws, that is processed by Five9 under the MSA and provided by Five9 to Sub-processor to be processed under the Services Agreement.

1.2 “Privacy Laws” means all applicable statutes and regulations pertaining to privacy and information security, including but not limited to: EU General Data Protection Regulation 2016/679 (“GDPR”); United Kingdom General Data Protection Regulation applicable by virtue of the Data Protection, Privacy and Electronic Communications (amendments, etc.) (EU Exit) Regulations 2019 and the Data Protection, Privacy and Electronic Communications (Amendments, etc.) (EU Exit) Regulations 2020 (“UK GDPR”); the Data Protection Act 2018; Personal Information Protection and Electronic Documents Act (“PIPEDA”); Personal Information Protection Act (Alberta) (“PIPA Alberta”); Personal Information Protection Act (British Columbia) (“PIPA BC”); Act Respecting the Protection of Personal Information in the Private Sector (“Quebec Privacy Act”); guidance issued by the U.S. Federal Trade Commission pursuant to its authority under Section 5 of the FTC Act, 15 U.S.C. § 45; European Directive 2002/58/EC, as amended by Directive 2009/136/EC (“ePrivacy Directive”) (as the same may be superseded by the Regulation on Privacy and Electronic Communications (“ePrivacy Regulation”)); Swiss Federal Act on Data Protection of 19 June 1992, as amended from time to time, and any successor legislation; and any other applicable laws or regulations regarding privacy and information security that are in effect or come into effect during the term of the Services Agreement. Privacy Laws includes US Privacy Laws.

1.3 “US Privacy Laws” mean all applicable United States state or federal statutes and regulations pertaining to privacy and information security, including but not limited to: the California Consumer Privacy Act, Cal. Civ. Code 1798.100 et seq., as amended including by the California Privacy Rights Act (the “CCPA”); the Virginia Consumer Data Protection Act, Code of Virginia title 59.1, Chapter 52 (the “VCDPA”); the Colorado Privacy Act, Colorado Rev. Stat. 6-1-1301 et seq. (the “CPA”); the Utah Consumer Privacy Act, Utah Code 13-61-101 et seq. (the “UCPA”); the Connecticut Act Concerning Personal Data Protection and Online Monitoring, Conn. Gen. Stat. 42-515 et seq. (the “PDPOM”); the Indiana Consumer Data Protection Act, S.B. 5 (the “INCDPA”); Iowa Consumer Data Protection Act, S.J. 708, (the “ICDPA”); the Montana Consumer Data Privacy Act, S.B. 384 (the “MCDPA”); the Tennessee Information Protection Act, H.B. 1181 (the “TIPA”); or any US regulations or guidance issued pursuant thereto, and any other applicable US laws or regulations regarding privacy and information security that are in effect or come into effect during the term of the Services Agreement.

1.4 “2021 Standard Contractual Clauses” means the standard contractual clauses annex to European Commission Implementing Decision (EU) 2021/914 for the transfer of Personal Information to Third Countries (and any successor clauses).

1.5 “UK Addendum” means the International Data Transfer Addendum to the 2021 Standard Contractual Clauses, issued by the Information Commissioner’s Office of the United Kingdom.

1.6 “Third Countries” means countries that are not recognized by the Privacy Laws as countries providing adequate protection of Personal Information.

1.7 The terms “business,” “collected,” “consumer,” “controller,” “data subject,” “personal data,” “personal information,” “process” or “processing,” “processor,” “service provider,” and “supervisory authority” shall have the meanings given to those terms in the applicable Privacy Laws to the extent such meanings are materially similar to the meaning of terms in effect upon the execution of this Addendum.  In the event of a conflict in the meanings of terms among the Privacy Laws, the Parties agree that only the meanings in applicable Privacy Laws will apply.

1.8 Capitalized terms not otherwise defined shall have the meaning given to them in the Services Agreement.

2. ROLES OF THE PARTIES

The Parties acknowledge and agree that with respect to any Personal Information, Five9 is a processor or service provider to Customers and Sub-processor is a sub-processor to Five9, as such terms are defined in the applicable Privacy Laws per Section 1.7 above. The details of the processing are provided in Annex 1 of this Addendum, including the duration, nature, and purpose of the processing, and the type(s) of Personal Information subject to the processing.

3. FIVE9 INSTRUCTIONS

Five9 instructs Sub-processor to process, and Sub-processor shall process, Personal Information in accordance with the Services Agreement, any Addendum thereto, any applicable Statement of Work or Service Order, and in compliance with other documented reasonable written instructions provided by authorized personnel of Five9, where such instructions are consistent with the terms of the Services Agreement. Sub-processor receives no monetary or other valuable consideration in exchange for Personal Information.

4. PARTIES’ RESPONSIBILITIES

4.1 Each Party is responsible (i) for its own compliance with the Privacy Laws, where applicable; and (ii) with respect to the processing of Personal Information hereunder, for ensuring its employees, agents, and sub-processors understand and shall comply with the Privacy Laws and applicable terms of this Addendum. Each Party agrees that it will notify the other Party upon determining that it is unable to process Personal Information in compliance with the Privacy Laws.

4.2 Five9 shall ensure any processing of Personal Information is in accordance with the requirements of the applicable Privacy Laws. Five9 has the sole responsibility for the accuracy of Personal Information and the means by which Five9 acquired Personal Information.

4.3 Sub-processor will (i) implement and maintain the reasonable technical and organizational security measures to safeguard Personal Information as described in Annex 2 (Technical and Organizational Measures Including Technical and Organizational Measures to Secure Data); (ii) provide the level of privacy protection required by applicable Privacy Laws; and (iii) shall provide Five9 with reasonable assistance to enable Five9 to fulfill its own obligations under applicable Privacy Laws.

4.4 Sub-processor, its employees, agents, and sub-processors are subject to a duty of confidentiality with respect to Personal Information.  Sub-processor will not (i) “sell” or “share” (as each are defined under the applicable US Privacy Laws) Personal Information, or retain, use, (ii) disclose Personal Information outside of Five9’s instructions set forth In Section 3 above or for any commercial purpose not specified in the Services Agreement, or (iii) when prohibited by applicable Privacy Laws, combine Personal Information received from Five9 with Personal Information that Sub-processor receives from, or on behalf of, another person or persons, or collects from its own interactions with consumers.

5. SUB-PROCESSORS

5.1 Appointment. Sub-processor shall engage sub-processors that process Personal Information only with Five9’s general written authorization.  Sub-processor shall notify Five9 of any intended changes concerning the addition or replacement of sub-processors. Further, Sub-processor shall ensure that Sub-processor’s sub-processors who collect, process, store, or transmit Personal Information on Sub-processor’s behalf agree in writing to the same restrictions and requirements that apply to Sub-processor in this Addendum and the Services Agreement with respect to Personal Information, as well as to comply with the Privacy Laws.

5.2 Right to Object. Five9 may object in writing to Sub-processor’s appointment of a new sub-processor by notifying Sub-processor in writing within thirty (30) calendar days of receipt of notice. In the event Five9 objects, Sub-processor will use reasonable efforts to make available to Five9 a change in the Services or recommend a commercially reasonable change to Five9’s configuration or use of the Services to avoid processing of Personal Information by the objected-to new sub-processor without unreasonably burdening Five9. If Sub-processor is unable to make available such change within a reasonable period of time, which shall not exceed sixty (60) days, Five9 may terminate the applicable ordering or purchasing documents with respect only to those Services which cannot be provided by Sub-processor without the use of the objected-to new sub-processor by providing written notice to Sub-processor. Sub-processor will refund Five9 any prepaid fees covering the remainder of the term of such ordering or purchasing documents following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Five9.

5.3 Re-identification. Sub-processor will not, and will not allow its sub-processors to, re-identify any de-identified, anonymized, or pseudonymized data derived from Personal Information, unless instructed by Five9 in writing (email is sufficient).

6. CONSUMER AND DATA SUBJECT REQUESTS

Sub-processor shall, to the extent legally permitted, promptly notify Five9 of any request it has received from a data subject or consumer (for purposes of this section, both referred to as a “data subject”) arising from a data subject’s rights of access, deletion, correction, or portability, each such request being a “Data Subject Request.” Sub-processor shall not respond to a Data Subject Request itself, except that Five9 authorizes Sub-processor to redirect the Data Subject Request as necessary to allow Five9 to respond directly. Taking into account the nature of the processing, Sub-processor shall assist Five9 by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Five9’s obligation to respond to a Data Subject Request under the Privacy Laws. In addition, to the extent Five9, in its use of the Services, does not have the ability to address a Data Subject Request, Sub-processor shall upon Five9’s request, provide commercially reasonable efforts to assist Five9 in responding to such Data Subject Request, to the extent Sub-processor is legally permitted to do so and the response to such Data Subject Request is required under the Privacy Laws.

7. SECURITY CONTROLS

7.1 Security Measures. Sub-processor shall implement and maintain reasonable technical and organizational security measures, procedures, and practices appropriate to the nature of the Personal Information to protect such Personal Information from unauthorized access, destruction, use, modification, or disclosure (“Security Measures”). Such Security Measures shall meet or exceed applicable industry standards and any obligations set forth in the Services Agreement or applicable law.

7.2 Security Incident. Sub-processor will inform Five9 without undue delay upon Sub-processor’s having become aware of any unauthorized access, destruction, use, modification, or disclosure (each, a “Security Incident”) of any Personal Information (to include, without limitation, any personal data breach as defined by the Privacy Laws). Sub-processor will provide Five9 with any information and cooperation reasonably requested by Five9 regarding such Security Incident. Sub-processor shall not provide notice to any third party of such Security Incident without the prior written consent of Five9 unless required by applicable law.

7.3 Security Program. Sub-processor shall implement a comprehensive written security program that includes industry-standard administrative, technical, and physical safeguards designed to ensure the confidentiality, security, and integrity of Personal Information. Upon Five9’s reasonable request, Sub-processor will provide Five9 with documentation that demonstrates its compliance with this Section.

8. DATA RETENTION, USE, AND DESTRUCTION

At the end of the provision of the Services, Sub-processor shall, at the choice of Five9, delete all Personal Information and certify to Five9 that it has done so, or return to Five9 all Personal Information and delete existing copies. Until the Personal Information is deleted or returned, Sub-processor shall continue to ensure compliance with the Privacy Laws.

9. DATA PROTECTION IMPACT ASSESSMENT

If applicable, Sub-processor shall, upon the reasonable request of Five9, provide Five9 with such assistance and information as is reasonably necessary to enable Five9 to carry out privacy impact assessments, data protection impact assessments, and required consultations with supervisory authorities under applicable Privacy Laws.

10. CROSS-BORDER DATA TRANSFERS

10.1 Transfer Mechanism – With regard to any transfers of Personal Information from the European Economic Area or the United Kingdom to countries that do not provide adequate protection for such data (as determined by the applicable Privacy Laws), the Parties hereby enter into applicable instruments in support of such transfer as set forth below.   

10.2 Transfers from the UK – For transfers of Personal Information from the United Kingdom, the UK Addendum (including all Part 2 Mandatory Clauses) is hereby incorporated by reference when it is available and is a valid transfer mechanism under applicable Privacy Laws.  The Parties further agree to the following provisions with respect to the UK Addendum:

a. Table 1 (Parties): The contents of Table 1 (Parties) shall be completed with details provided in Annex 1.

b. Table 2 (Selected SCCs, Modules, and Selected Clauses):

        (i) The Addendum EU SCCs shall be the Approved EU SCCs.  
        (ii) Module Three (processor-to-processor) will apply.  
        (iii) In Clause 7, the Parties do not permit docking.  
        (iv) In Clause 9(a), the Parties select Option 2.  
        (v) In Clause 11, the Parties do not select the independent dispute resolution option.

c. Table 3 (Appendix Information): The list of parties and the description of the transfers are provided in Annex 1. The technical and organizational measures including technical and organizational measures to ensure the security of the data are provided in Annex 2.

d. Table 4 (Ending this Addendum when the Approved Addendum Changes): The Parties agree that Importer or Exporter may end the Addendum as set out in Section 19 of the UK Addendum.

e. Conflicts: In the event of any conflict or inconsistency between this Addendum and the UK Addendum with respect to UK data subjects, the UK Addendum shall prevail.

10.3 Transfers from the EEA – For all other transfers of Personal Information, including transfers of Personal Information from the European Economic Area, the 2021 Standard Contractual Clauses are hereby incorporated by reference when they are available and are a valid transfer mechanism under applicable Privacy Laws.  The Parties further agree to the following provisions with respect to the 2021 Standard Contractual Clauses:

a. Identity of the Parties:  The data exporter is Five9, and the data importer is Sub-processor.  Accordingly, Module Three (processor-to-processor) is the sole module applicable to transfers involving Personal Information.

b. Conflicts:  In the event of any conflict or inconsistency between this Addendum and the 2021 Standard Contractual Clauses, the 2021 Standard Contractual Clauses shall prevail.

c. Appendices:  Responses to the Annexes to the 2021 Standard Contractual Clauses are provided in Annexes 1 and 2 attached hereto.

d. Transfer Impact Assessments:  Upon Five9’s reasonable request, Sub-processor will make available to Five9 its documented assessment of its processing of Personal Information hereunder for the purpose of Clause 14.

e. Specific Provisions:  The following specific provisions apply to the 2021 Standard Contractual Clauses:

        (i) In Clause 7, the Parties do not permit docking.  
        (ii) In Clause 9, the Parties select Option 2 and a time period of 30 days.  
        (iii) In Clause 11, the Parties do not select the independent dispute resolution option.  
        (iv) In Clauses 17 (Option 2) and 18(b), the Parties agree that the jurisdiction is the member state in which controller is established, or if the controller is not established in a member state, the Republic of Ireland.

11. AUDIT RIGHTS

Five9 shall have the right to take reasonable and appropriate steps to ensure that Sub-processor uses the Personal Information in a manner consistent with Five9’s obligations under the Privacy Laws. At Five9’s request, Sub-processor shall permit and contribute to audits of the processing under the Services Agreement, at reasonable intervals or if there are indications of non-compliance. Sub-processor shall make available to Five9 all information necessary to demonstrate Sub-processor’s compliance with its obligations under the Privacy Laws with respect to Personal Information.

12. MISCELLANEOUS

12.1 Severability. If any provision of this Addendum shall be found to be void by a court of law, such provision shall be deemed to be severable from the other provisions of this Addendum, and the remainder of this Addendum shall be given effect, as if the Parties had not included the severed provision.

12.2 Survival. All representations, warranties, and indemnities shall survive the termination and/or expiration of this Addendum and shall remain in full force and effect. All of a Party’s rights and privileges — to the extent they are fairly attributable to events or conditions occurring or existing on or prior to the termination and/or expiration of this Addendum — shall survive termination and shall be enforceable by that Party.

12.3 General – The terms and conditions of the Services Agreement are incorporated by reference into this Addendum with full force and effect. Except as expressly set forth herein, the terms of the Services Agreement shall remain unmodified and in full force and effect. In the event of a conflict between the terms of the Services Agreement and the terms of this Addendum, the terms of this Addendum shall control. Headers are for convenience and do not affect the interpretation of the terms of this Addendum.

12.4 Changes to Privacy Laws. To the extent this Addendum requires a Party to comply with the Privacy Laws, compliance will be in accordance the Privacy Laws as in force and applicable at the time of performance and, if the relevant obligation is not then a requirement under the Privacy Laws, it shall not apply until it is so required. The Parties agree to cooperate in good faith to enter into additional terms to address any modifications, amendments, or updates to the applicable Privacy Laws.

ANNEX 1: DESCRIPTION OF DATA PROCESSING/TRANSFER

A. List of Parties

B.  Description of PROCESSING/CROSS-BORDER Transfer (IF APPLICABLE)

C.  COMPETENT SUPERVISORY AUTHORITY.  EEA data subjects: Republic of Ireland. UK data subjects: United Kingdom.