Five9 Inc. Developer Program Master Agreement
1. Acceptance of Terms.
This Developer Program Master Agreement (the “Agreement”) applies to participants in the Five9 Inc. (“Five9”) Developer Program. 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 (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. By accepting the Agreement where indicated below and by using and continuing to use the API Software, you agree to be bound by this Agreement. IF YOU DO NOT AGREE WITH EVERY TERM OF THIS AGREEMENT, DO NOT INSTALL OR USE THE API SOFTWARE.
2. License and Restrictions.
a. Subject to the terms and conditions of this Agreement, Five9 grants you a non-exclusive, non-transferable, non-sublicenseable license during the term of this Agreement to install and use the API Software provided by Five9 on a computer owned or 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 to operate nuclear facilities, life support, or other mission critical 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 except as an integral component of an Application without Five9’s prior expressed written permission.
3. Ownership.
Except for the limited license granted to you under this Agreement, Five9 and Five9’s licensors (“Five9 Licensors”) own and shall retain all rights, title, and interest in and to their applicable portions or components of the API Software. The API Software is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this Agreement. Your use of the API Software and your development of any Applications using the API Software shall in no event limit or restrict Five9 in any manner from independently developing the same or similar applications or functionality. You agree that the Five9 Licensors may enforce their rights under this Agreement against you directly in their own name. All rights not expressly granted to you are reserved by Five9 or their respective owners.
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 or liability.
5. Fees and Payments.
Five9 will provide you with a one-time $50 credit towards phone calls placed on the Five9 system, provided that, once that initial credit is exhausted, you will be responsible for purchasing 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 AND ANY DATA ACCESSED THROUGH THE API SOFTWARE IS AT YOUR SOLE RISK AND IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. ANY MATERIAL OR SERVICE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE FIVE9 SOFTWARE SERVICES IS DONE AT YOUR OWN DISCRETION AND 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, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND ASSIGNS (COLLECTIVELY, “FIVE9 ENTITIES”) AND FIVE9 LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, 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, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
IF THE FIVE9 SOFTWARE SERVICES OR ANY DATA ACCESSED THEREFROM PROVES DEFECTIVE, YOU (AND NOT THE FIVE9 ENTITIES OR THE FIVE9 LICENSORS) ASSUME THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF THE FIVE9 ENTITIES OR FIVE9 LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH A DEFECT OR DAMAGES. SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
7. Limitation of Liability.
THE FIVE9 ENTITIES AND FIVE9 LICENSORS 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.
THE FIVE9 ENTITIES AND FIVE9 LICENSORS ARE 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. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS RESTRICTION MAY NOT APPLY TO YOU.
INFORMATION PROVIDED THROUGH THE FIVE9 SOFTWARE SERVICES MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND THE FIVE9 ENTITIES AND FIVE9 LICENSORS 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 the Five9 Entities and Five9 Licensors 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 or no 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. General Provisions.
a. This Agreement and the relationship between you and Five9 is governed by the laws of the State of California without regard to its conflict of law provisions. You and Five9 agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Francisco, California. The United Nations Convention on the International Sale of Goods does not apply to this Agreement.
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, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
c. This Agreement constitutes the entire understanding between the parties respecting use of the Five9 Software Services, superseding all prior agreements between you and Five9 related thereto.
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.
e. This Agreement creates no direct relationship between you and the Five9 Licensors, or between you and Five9, other than that of licensor to licensee under this Agreement.
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.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND AND ACKNOWLEDGE THE TERMS SET FORTH HEREIN. BY DOWNLOADING AND USING THE API SOFTWARE, YOU CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Last modified: October 2, 2009
