Five9 Developer Program Agreement
This Five9 Developer Program Master Agreement (“Agreement”) is a binding legal agreement between Five9, Inc. (“Five9”) a Delaware corporation, and you, the participant in the Five9 Developer Program (“Developer” or “you”). Developer agrees to be bound by this Agreement through its express agreement to this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING OR INSTALLING THE FIVE9 SOFTWARE SERVICES (AS DEFINED BELOW). BY USING OR INSTALLING THE FIVE9 SOFTWARE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE OR INSTALL THE FIVE9 SOFTWARE SERVICES, AND, IF PRESENTED WITH THE OPTION TO “AGREE” OR “DISAGREE” TO THE TERMS OF THIS AGREEMENT, CLICK “DISAGREE.”
1. Acceptance of Terms.
If accepted into the Developer Program, Five9 will make available to you certain Application Programming Interfaces (APIs) and software, including related documentation and computer files, and any upgrades, enhancements, modifications, updates, revisions and substitutions thereto provided by Five9 (collectively, the “API Software”) that you can use to develop custom applications and integrations to extend Five9’s standard Virtual Call Center Suite capabilities (“Applications”). Your use of the API Software, Five9 Support (as defined below) or the Five9 services and web sites relating thereto (collectively, “Five9 Software Services”) is subject to your compliance with the terms and conditions of this Agreement, which may be updated by Five9 from time to time without notice to you.
2. License and Restrictions.
a. Subject to Developer’s compliance with the terms and conditions of this Agreement, Five9 hereby grants to Developer a non-exclusive, worldwide, royalty-free, non-transferable, non-sublicensable license during the term of this Agreement to install and use the API Software provided by Five9 on a computer controlled by you solely for the purpose of developing Applications.
b. You may not: (i) decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) from the API Software or any portion thereof; (ii) use the API Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement; (iii) use the API Software for an application where human life or property may be at stake; (iv) use or export the API Software in violation of applicable U.S. laws or regulations; or (v) sell, lease, loan, distribute, transfer, or sublicense the API Software or access thereto without Five9’s prior expressed written permission.
3. Ownership.
The API Software, Five9 Software 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, AI features, 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 rights expressly granted in this Agreement, nothing in this Agreement 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.
4. Support and Software Updates.
Five9 has no obligation to support your Applications or your use of the API Software. However, Five9 may elect to provide you with support for the API Software and/or related software upgrades, enhancements, or modifications for the API Software (collectively, “Five9 Support”), in its sole discretion, and may terminate such Five9 Support at any time without notice to you. Five9 may change, suspend, or discontinue any aspect of the API Software at any time, including the availability of any API Software feature or functionality. Five9 may also impose limits on certain features and services or restrict your access to parts or all of the API Software without notice to you.
5. Fees and Payments.
Five9 will provide you with a one-time $500 credit towards phone calls placed on the Five9 system. Once that initial credit is exhausted, you will be responsible for purchasing any and all additional credit towards phone calls on the Five9 system that you may require. Five9 reserves the right to charge fees for future use of or access to the Five9 Software Services in Five9’s sole discretion.
6. Disclaimer of Warranties.
USE OF THE FIVE9 SOFTWARE SERVICES IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. ANY MATERIAL OR SERVICE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE FIVE9 SOFTWARE SERVICES IS DONE AT YOUR OWN DISCRETION AND YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD AND/OR USE OF ANY SUCH MATERIAL OR SERVICE.
FIVE9 EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING OR RELATING TO THE FIVE9 SOFTWARE SERVICES AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE FIVE9 SOFTWARE SERVICES AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, SHALL FIVE9 BE LIABLE TO DEVELOPER OR ANY OTHER PERSON FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS, LOSS OF DATA OR INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF ANY BREACH OF WARRANTY REGARDING THE SAMPLE CODE OR DEVELOPER’S USE OF OR INABILITY TO USE THE FIVE9 SOFTWARE SERVICES.
7. Limitation of Liability.
FIVE9 WILL NOT BE LIABLE TO YOU FOR CLAIMS AND LIABILITIES OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATED TO (i) THE USE OF THE FIVE9 SOFTWARE SERVICES BY YOURSELF OR BY THIRD PARTIES OR (ii) APPLICATIONS THAT YOU MAY DEVELOP, WHETHER SUCH CLAIMS AND LIABILITIES ARE BASED ON ANY LEGAL OR EQUITABLE THEORY.
FIVE9 IS NOT LIABLE TO YOU FOR ANY AND ALL DIRECT, INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO ANY THIRD-PARTY SOFTWARE, ANY DATA ACCESSED THROUGH ANY THIRD PARTY SOFTWARE, YOUR USE OR INABILITY TO USE OR ACCESS THE FIVE9 SOFTWARE SERVICES, OR ANY DATA ACCESSED THROUGH THE FIVE9 SOFTWARE SERVICES, WHETHER SUCH DAMAGE CLAIMS ARE BROUGHT UNDER ANY THEORY OF LAW OR EQUITY. DAMAGES EXCLUDED BY THIS PARAGRAPH INCLUDE, WITHOUT LIMITATION, THOSE FOR LOSS OF BUSINESS PROFITS, INJURY TO PERSON OR PROPERTY, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR PERSONAL INFORMATION.
INFORMATION PROVIDED THROUGH THE FIVE9 SOFTWARE SERVICES MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND FIVE9 WILL HAVE NO LIABILITY WITH RESPECT THERETO. FIVE9 MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE FIVE9 SOFTWARE SERVICES OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE FIVE9 SOFTWARE SERVICES AT ANY TIME WITHOUT PRIOR NOTICE TO YOU.
8. Indemnification.
You agree to indemnify and hold Five9 and its employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party in connection with or arising out of your use of the Five9 Software Services, your Applications, your violation of any terms or conditions of this Agreement, your violation of applicable laws, or your violation of any rights of another person or entity.
9. Termination.
Unless earlier terminated as provided herein, this Agreement shall commence upon your acceptance and continue for a period of one (1) year. You may terminate the Agreement at any time by discontinuing use of all or any of the API Software and by deleting or destroying the API Software in your possession or control. This Agreement terminates automatically if (i) you violate any term of this Agreement or (ii) Five9 sends a written notice of termination to you for any reason. If your rights under this Agreement are terminated, you agree to cease any and all use of the Five9 Software Services. Sections 2(b), 3 and 5 through 10 will survive any termination or expiration of this Agreement.
10. VoiceStream
a. Prior to You providing any product or service in relation to Five9 VoiceStream, You must have a valid agreement in place with the applicable customer that permits You to access, receive, and process customer's data for purposes related to the Five9 VoiceStream service.
b. You will handle customer's data (both audio streams and call events) sent to You by Five9 on behalf of customer in accordance with the customer's instructions (including any instructions addressing secure storage, retention and deletion).
c. You will comply with all customer data residency requirements. You hereby agree that You are responsible for data both in transit and upon receipt.
d. Five9 VoiceStream is currently provided for usage from Five9 datacenters in select regions such as the US, UK or EU. Designated Five9 VoiceStream destinations, as defined by You as part of the VoiceStream directive attached to each customer subscription, are to be located in the same respective country as the Five9 datacenters or in a location approved by Five9 during the accreditation process. VoiceStream partners are required to get their solution accredited by Five9 in each respective datacenter region of interest. You will need to be able to receive the customer’s data in the specific region selected by the customer and comply to with any applicable laws, rules and regulations related to Five9 VoiceStream data in such region.
e. You will not share credentials, security tokens, or any other security-related information provided by Five9 to You, including such information related to Five9 VoiceStream.
f. You will not publicize or describe themselves, to any party, as a Five9 Accredited VoiceStream partner, an official Five9 VoiceStream partner, or similar description aligning You with Five9, until after Your Application is published on the Five9 Accredited VoiceStream partner list. Your application used with Five9 VoiceStream will note that it is “Powered by Five9 VoiceStream," unless agreed otherwise by the parties in writing.
11. General Provisions.
a. This Agreement 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 Agreement shall be San Francisco, California.
b. The failure of Five9 to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, it is only deemed omitted to that extent, and the rest of the Agreement remains enforceable.
c. The parties agree that this Agreement comprises the entire understanding and all obligations between them, and supersedes any prior discussions or agreements, including non-disclosure agreements or correspondence with respect to the subject matter of this Agreement.
d. You may not assign or transfer this Agreement, or any of your rights or obligations under this Agreement, without the prior written consent of Five9.
f. Five9 may provide you with notices, including those regarding changes to this Agreement, by either email, regular mail, or postings on the Five9 Developer Program home page at http://www.five9.com/development.