Related to Five9 Cloud Services - Westcon-Comstor

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Reseller shall sell the Cloud Services to End Users only on a non-exclusive, annual or multi-annual, auto- renewing subs
Appendix B Special Addendum Agreement between Reseller and Distributor (Westcon) Related to Five9 Cloud Services: The Parties understand and agree that: I.

Definitions A. Reseller shall mean the customer of Westcon and shall mean the entity reselling Cloud Services to the End User. B. Distributor shall mean Westcon, the entity that is authorized by Five9 to resell Five9 Cloud Services to Reseller. C. “Services” or “Cloud Services”) means the proprietary hosted virtual call center software and system provided by Five9, Inc., the cloud service provider (“Five9”). D. “Documentation” means any and all additional documents, policies, procedures, programs, requirements, criteria and/or information relating to the sale and usage of the Cloud Services, including but not limited to these Terms, Statements of Work and/or Service Level Agreements, Authorized Use Policy, Five9’s minimum hardware, software and Internet connectivity for use of the Cloud Services as specified at http://www.five9.com/call-center-software/systemrequirements.htm and Five9’s data retention practices set forth at www.five9.com/4433, all of which may be updated or modified from time to time. E. “End User Agreement” means the agreement between a CSR and an End User pursuant to which access to the Cloud Services is provided to such End User.

II.

Terms

Reseller shall sell the Cloud Services to End Users only on a non-exclusive, annual or multi-annual, autorenewing subscription basis and only pursuant to an End User Agreement, which includes, along with any other terms and conditions agreed to by and between Reseller and the End User, the terms and conditions for End Users of the Cloud Services set forth in Schedule 1 to this Special Addendum (the “Five9 End User Terms”). Reseller may not alter, amend or delete any portion of the then-current Five9 End User Terms nor permit any End User to do so. Reseller acknowledges that Five9 may amend the Five9 End User Terms by providing Distributor not less than thirty (30) days advance written notice; provided that such amended Five9 End User Terms will not be applied retroactively, but only to prospectively to new End User Agreements which are entered into by Reseller after the effective date of such amendment. Reseller agrees to the following terms and conditions and shall notify the End User of these terms and conditions as a requirement to use the Cloud Services. Reseller agrees to: (i) ensure compliance with applicable laws for Services provided; (ii) pay when due all undisputed fees for the Services; (iii) use reasonable security precautions which are implemented as a condition to End Users’ use of Services; (iv) cooperate with the reasonable investigation of outages, security problems, and any suspected breach of this Agreement; (v) maintain current account information; and (vi) immediately notify Distributor of any known unauthorized use of a Reseller account or an End User account or any other known breach of security.

Documentation. Reseller agrees to comply with and shall notify End User that it will be required to accept and comply with the terms of any applicable Documentation. Reseller Fees. Reseller shall set all fees which Reseller charges to End Users for the Services. Reseller acknowledges and agrees that Reseller is liable to pay all undisputed fees due to Distributor for Services regardless of whether End Users pay fees due Resellers. In the event that any fees owed to Distributor by Reseller are thirty (30) days or more overdue, Distributor may suspend access to the Services associated with such delinquent payment ("Suspension of Access") without any further penalty to Distributor. In the event of a Suspension of Access, any remaining monthly fees in the subscription term associated with such delinquent payment, beginning on the first day of the month immediately following the Suspension of Access, shall immediately accelerate and be billed to Reseller. THE TERMS PROVIDED IN THIS SECTION ARE IN ADDITION TO ANY SUSPENSION OR TERMINATION RIGHTS IMPOSED BY FIVE9 AS THE CLOUD SERVICES PROVIDER DIRECTLY TO THE END USER. Data Use. During the normal operation of the Cloud Services, Five9 will collect and store on its systems certain information and data provided, or collected by or regarding the Reseller and/or End Users (collectively, “Personal Data”). Reseller agrees and authorizes Five9 to store Reseller’s Personal Data on Five9’s secure internal systems and to use and copy Reseller’s Personal Data solely for the purpose of providing the Cloud Services to End Users. Additionally, Reseller agrees that Five9 may use nonindividually identifiable Reseller’s Personal Data in perpetuity for internal business purposes, solely to test, analyze and improve the Cloud Services. Five9 will not resell or share any of Reseller’s Personal Data with a third party without Reseller’s express written authorization. Data Retention. Due to the storage demands on the Cloud Services, Five9 retains the right to periodically purge Reseller’s Personal 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 OTHER WARRANTIES OR INDEMNITIES EXIST BETWEEN DISTRIBUTOR AND RESELLER OR DISTRIBUTOR AND END USER. IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by their duly authorized representatives. Westcon Group North America, Inc.

[INSERT CSR NAME]

Signature: _________________________

Signature:

______________________________

Print Name: ________________________

Print Name: _____________________________

Title:

_________________________

Title:

______________________________

Date:

_________________________

Date:

______________________________

Schedule 1 to the Special Addendum Five9 End User Terms Suspension or Termination by Five9. Five9 may suspend, terminate or cancel End User’s access to Services as follows: i) For Cessation of Services. Five9 may suspend access to any portion or feature of the Services that it ceases to offer to its overall customer base by providing End User with written notice at least one hundred eighty (180) days prior to the date it intends to cease providing such Service. ii) For Delinquent Accounts. Five9 may suspend or disable End User's access to the Services for any accounts for which undisputed payment is delinquent, provided however that Five9 shall

have provided End User with reasonable adequate notice and sufficient time to cure the delinquency. iii) For Actual or Potential Harm to Five9 or a Third Party. Five9 may suspend or terminate End User’s account if Five9 has a good faith belief that End User (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"; or (y) is compromising the security of the Services. Five9 agrees that in the event it becomes aware of such actions by the End User it will immediately notify the End User of the unauthorized activity and either allow the End User reasonable time to cease the activity or, if warranted by the circumstances, immediately suspend End User's access to the Service. End User Account. End User is responsible for all authorized and unauthorized access, activities and charges associated with the End User's account and/or password(s) with Five9, except for unauthorized charges that can reasonably be determined to be the result of Five9's mistake, omission or negligence in providing sufficient safeguards against unauthorized third party access to End User's account. End User is responsible for the confidentiality of its password(s), for all charges incurred from the use of the Services with its password(s) and for any and all charges made through the End User's account by End User's employees, agents, principals, consultants, or other entities or individuals in the employ of or engaged by End User regardless of the reason for such charges. Data Use. During the normal operation of the Services, Five9 will collect and store on its systems certain information and data provided, collected by or regarding End User and/or the reseller which is a party to this agreement with End User (the “Reseller”) (collectively, “Personal Data”). End User agrees and authorizes Five9 to store End User’s Personal Data on Five9’s secure internal systems and to use and copy End User’s Personal Data solely for the purpose of providing the Services to End User. Additionally, End User agrees that Five9 may use non-individually identifiable End User’s Personal Data in perpetuity for internal business purposes, solely to test, analyze and improve the Services. Five9 will not resell or share any of End User’s Personal Data with a third party without End User’s express written authorization. Data Retention. Due to the storage demands on the Services, Five9 retains the right to periodically purge End User’s Personal 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. End User 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. Five9 is not required to offer Emergency Service, pursuant to any applicable laws, rules or regulations. Five9 is not a replacement for End User's primary telephone service. FIVE9'S SERVICES DO NOT INCLUDE EMERGENCY SERVICE. END USER UNDERSTANDS AND AGREES THAT ADDITIONAL ARRANGEMENTS WITH A THIRD PARTY MUST BE MADE BY END USER 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 End User 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, End User’s use of the Five 9's Services or any other service provided hereunder to contact a PSAP or Emergency Services personnel. End User specifically 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. End User 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 End User agrees to comply with all federal, state and/or local law related to or connected with providing, selling, licensing and delivering information services and telecommunications services and products. End User assumes all liability and responsibility for its use of the Services in compliance with any federal, state or local laws, rules or regulations pertaining to the use of telephones, email, fax, automated telephonic equipment (e.g. “Predictive Dialer”) and other telephony and telecommunications products and services. End User’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. Five9 will not be responsible for End User's illegal or fraudulent use of the Services and End User will indemnify and defend Five9 against any claims, liabilities or expenses (including attorneys’ fees) incurred by Five9 based upon End User’s illegal or fraudulent use of the Services. Consents. End User is solely responsible for obtaining the consent of or a release from those persons or entities, to whom or to which End User intends to send communications using the Services. End User agrees to periodically review the list of recipients to be contacted, to contact only those persons who the End User is legally permitted to contact from End User’s End User 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 End User. "Do Not Call" Compliance. If End User is advised by any party that they do not wish to receive communications from End User via the Services, then End User 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 End User’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. 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) End User or Five9 equipment malfunctions; or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to Five9’s or the End User’s data centers. Ownership of Materials and Rights. The Services is proprietary to Five9 and are protected by intellectual property laws and international intellectual property treaties. End User Data and End User’s text, recorded messages and/or voice conversations transmitted over the Services are proprietary to End User. Except for the access to and use the Services granted to End User in this Agreement, nothing in this Agreement shall convey, transfer or assign any right, title or interest in the Services to End User. The Services are not sold. All rights not granted by Five9 herein are expressly reserved.