General Terms and Conditions
PLEASE READ CAREFULLY : UNLESS YOU HAVE ANOTHER VALID WRITTEN AGREEMENT APPLICABLE TO YOUR PURCHASE OF PRODUCTS AND SERVICES FROM FIVE9 NETWORK SYSTEMS, THE FOLLOWING TERMS AND CONDITIONS WILL GOVERN SUCH PURCHASES.
These terms and conditions (“Agreement”) apply to you (“you” or “Customer”) and your purchase of products and services from Five9 Network Systems, LLC (“Five9NS”). By placing your order for products or services, you accept and are bound to the terms and conditions of this Agreement.
(a) “Design Deliverables” refers to system designs and other deliverables provided to Customer by Five9NS pursuant to a Statement of Work.
(b) “Five9NS Design Services” refers to any custom engineering design services Five9NS provides for a fee to Customer pursuant to a Statement of Work.
(c) “Five9NS Products” refers to the hardware products, including firmware, components, and spare parts manufactured by Five9NS and available for sale which are listed on a Five9NS product price list or identified in Customer quote or purchase order as “Five9NS Products.”
(d) “Five9NS Support Services” refers to any support services Five9NS provides to its customers, including the Five9NS warranty services described below in Section 5 and in the Five9NS Limited Hardware Warranty , or any other support services mutually agreed to in writing by the parties.
(e) “Pre-Existing Five9NS IP” refers to any intellectual property created by Five9NS prior to or outside the scope of a design project described in a Statement of Work.
(f) “Products” refers to Five9NS Products, and Third Party Products, and Software collectively.
(g) “Software” refers to software licensed for use with Five9NS Products including, without limitation, the operating system, any third party software, or any other software added or reloaded to the Five9NS hardware products.
(h) “Statement of Work” refers to any statement of work for custom engineering design services agreed to in writing by Five9NS and Customer pursuant to this Agreement. Upon execution, each Statement of Work becomes part of this Agreement.
(i) “Third Party Products” refers to the products manufactured by third parties and sold with Five9NS Products under this Agreement, that are specifically identified by Five9NS as “Third Party Products.”
(a) Ordering Products and Services . To order Five9NS Products and Services, Customer will submit a written purchase order to Five9NS specifying, at a minimum, the following information: (i) type and quantity of Products ordered and/or description of Design and Support Services to be provided, (ii) location to which Products should be shipped, (iii) requested delivery date; and (iv) Five9NS quote number, if applicable (“Order”). The Order is binding on Customer (non-cancellable, non-returnable) as of the date Five9NS informs Customer in writing that it is accepting the Order. Five9NS reserves the right to accept or reject Orders in its sole discretion and agrees to notify Customer of such acceptance or rejection within 5 business days of receipt of such Order.
(b) Fulfillment of Orders . When Five9NS accepts an Order, Five9NS will provide Customer with an estimated ship date(s) for all Products ordered and will use commercially reasonable efforts to fill the order by the estimated ship date. Notwithstanding the foregoing, Five9NS will not be liable for any failure to deliver Products by any particular date. Five9NS may make Product substitutions and modifications that do not cause a material adverse effect in overall Product performance. Five9NS may make and invoice for partial deliveries. Customer may not make changes to an Order once it has been accepted, without Five9NS’ prior written consent.
(c) Shipment Terms . All Five9NS Products delivered pursuant to this Agreement will be suitably packed for shipment in standard shipping cartons, marked for shipment, and delivered to Customer FOB Five9NS’s manufacturing facility. Customer will pay all freight, insurance, and other shipping expenses. Customer will also bear all applicable taxes, duties and similar charges that may be assessed against the Five9NS Products after delivery to the carrier at Five9NS’s facilities. Five9NS will only ship Five9NS Products to Customer sites in the United States. Where permitted by law, Five9NS retains a security interest in products sold until full payment is received. </>
(a) Pricing. The prices applicable to an Order for Products or Services will be those set forth in Customer’s quote. Unless otherwise specified in writing by Five9NS, quoted prices remain in effect for 30 days. All prices are FOB origin and are exclusive of all taxes, duties, and fees (including shipping, handling, and insurance).
(b) Expenses. Unless a Statement of Work provides to the contrary, fees for Five9NS Design Services do not include taxes, travel expenses, time spent in meetings, shipping expenses, or other out-of-pocket expenses incurred in the provision of such Services, all of which Customer will reimburse or pay at Five9NS’ then-current time and materials rates. Customer will reimburse travel expenses at Five9NS’ cost plus 10%.
(c) Taxes, Other Fees. Except for taxes assessed on the net income of Five9NS, Customer agree to pay all sales, value added and other transactional taxes and fees, associated with Customer’s purchase of Products and Services.
(d) Invoicing and Payment. Five9NS will invoice Customer for Products at the time the Products are shipped. Five9NS will invoice for Design Services according to the payment schedule in the relevant Statement of Work. Payment terms will be net thirty days from the invoice date. All payments will be made in U.S. Dollars. For invoices not paid within thirty days of the invoice date, a late penalty charge of one percent (1.5%) per month (pro-rated daily) or the maximum rate allowed by applicable usury laws, whichever is greater, will be applied against overdue amounts.
(a) IP Ownership of Products. All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Products belong solely and exclusively to Five9NS, its suppliers and licensors. Customer may not copy, modify, decompile, or reverse-engineer any Products. Except as provided below in Subsection 4(b), no transfer of ownership of any intellectual property will occur under this Agreement.
(b) Assignment of Design Deliverables . Effective upon receipt of full payment pursuant to a Statement of Work, Five9NS will assign to Customer all right, title, and interest in and to all Design Deliverables delivered pursuant to that Statement of Work. Notwithstanding the foregoing, the rights assigned pursuant to the preceding sentence do not include any rights in Preexisting Five9NS IP, provided that effective on the date of assignment pursuant to the preceding sentence, Five9NS grants Customer a nonexclusive license to reproduce, distribute, modify, publicly perform, publicly display, and use any Preexisting Five9NS IP incorporated into a Design Deliverable, solely as an integrated component of such Deliverable, with the right to sublicense each and every such right.
(c) Software Licenses. Five9NS grants to Customer a non-exclusive and non-transferable license to use the Software, including firmware embedded in the Five9NS Hardware Products, provided to Customer hereunder for its internal use only, subject to any restrictions set forth in an Order confirmation; and to any supplemental license terms accompanying the Software. Software is confidential and copyrighted. All rights therein not expressly granted to Customer are reserved to Five9NS and its suppliers and licensors.
(d) Injunctive Relief. Customer acknowledges that any breach or threatened breach of any license involving unauthorized use of Five9NS's intellectual property will result in irreparable harm to Five9NS for which damages may not be an adequate remedy. In addition to the rights and remedies otherwise available at law, Five9NS is entitled to equitable relief, including injunction, in the event of such breach.
(e) Proprietary Rights Notices. Customer may not alter or obscure any proprietary rights notice appearing on any Five9NS Products or Five9NS-supplied materials, and must include such notices on any copies.
(a) One Year Return to Depot Limited Warranty . All Five9NS Products carry the Five9NS Limited Hardware Warranty . The limited warranty period will begin on the date the Five9NS Products are shipped from Five9NS’ manufacturing location to the location designated by Customer.
(b) Repairs for Products . Five9NS will complete warranty repairs for Five9NS Products according to the Five9NS Limited Hardware Warranty. Except in the event Customer has purchased additional Support Services, Five9NS assumes no obligation to repair non-warranted defects in Products or to repair Products after the warranty period has expired. Five9NS’ ability to deliver warranty services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services.
(c) No Software Warranty. Products sold hereunder may include Software. All such Software is provided to Customer subject to specific Software licensing arrangements and is provided “AS IS” without any warranties of any kind.
(d) High Risk Applications. Five9NS has not tested or certified any Products for use in high risk applications including medical life support, nuclear power, mass and air transportation control or any other potentially life critical uses. Customer understands and agrees that Five9NS makes no assurances that the Products are suitable for any high-risk uses. FIVE9NS WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT LIMITED TO THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT, OR WEAPON SYSTEMS.
(e) Warranty Disclaimers . EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION 5, FIVE9NS AND IT SUPPLIERS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Neither Five9NS nor its suppliers warrant that the Products or Design Deliverables will perform without error or that they will run without immaterial interruption.
(a) By Five9NS . Five9NS will indemnify Customer, including Customer’s officers, directors, agents, employees, subsidiaries, affiliates, parents, successors and assigns, from any third party claim, demand, cause of action, debt or liability (including attorney’s fees and expenses) that the Five9NS Products, excluding any Software or Third Party Products embedded therein, infringe any patent, copyright, trademark or other intellectual property rights of a third party in the United States (a “Five9NS Indemnified Claim”). Five9NS will not indemnify Customer or bear any responsibility for any claim, demand, cause of action, debt or liability based, in whole or part, (i) upon Five9NS’ compliance with the designs or specifications provided by Customer; (ii) upon Customer’s modification of the Five9NS Products; or (iii) from any combination, operation or use of the Five9NS Products with other products or services if such claim would not have arisen but for such combination. Five9NS’ duty to indemnify under this Subsection 6(a) is contingent upon Five9NS receiving prompt notice of a Five9NS Indemnified Claim and Five9NS’ right to solely control resolution of such Claim. Customer’s sole remedy for a Five9NS Indemnified Claim is as follows: Five9NS will, at its expense and in its discretion, either (a) resolve the Five9NS Indemnified Claim in a way that permits continued ownership and use of the affected Five9NS Product; (b) provide a comparable non-infringing replacement Five9NS Product at no cost to Customer; or (c) accept return of the Five9NS Product freight collect and provide a reasonable depreciated refund for such Product. This Subsection 6(a) is an exclusive statement of Five9NS’ liability and responsibility for Indemnified Claims and nothing in this Agreement or elsewhere will obligate Five9NS to provide any greater indemnity to Customer.
(b) By Customer . Customer will indemnify, defend and hold Five9NS, including Five9NS’ officers, directors, agents, employees, subsidiaries, affiliates, parents, successors and assigns, harmless from any claim, demand, cause of action, debt or liability: (i) that Customer’s modifications of and/or additions to the Products infringe on, misappropriate or otherwise violate the intellectual property of a third party; (ii) that the Design Deliverables infringe on the intellectual property rights of a third party; or (iii) that the Products sold to Customer under this Agreement damage a third party to the extent such Claim is based on (A) Customer’s misuse or abuse of the Products, negligence or breach of any provision in this Agreement; (B) failure of Customer to abide by all applicable laws, rules, regulations and orders that affect the Products; or (C) Customer causing intentional harm to any person or property. Customer’s duty to indemnify, defend and hold harmless under this Subsection 6(b) is contingent upon Customer receiving prompt notice of any claim, demand, cause of action, debt or liability for which Customer must indemnify Five9NS and Customer’s right to solely control the defense of all matters for which Customer is liable under this Section.
(a) Limitations. Except as provided below in Subsection 7(b): (i) IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF FEES PAYABLE TO FIVE9NS PURSUANT TO THIS AGREEMENT (INCLUDING FEES BOTH PAID AND DUE) DURING THE 12 MONTHS IMMEDIATELY PRECEDING NOTICE OF THE EVENT GIVING RISE TO THE LIABILITY UP TO A MAXIMUM OF $1,000,000; AND (ii) IN NO EVENT WILL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SUBSECTION 7(a) APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF THE PARTY TO BE CHARGED IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF THE OTHER PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 7(a), each party’s liability will be limited to the maximum extent permissible.
(b) Exclusions. Subsection 7(a) above does not apply to (i) claims pursuant to Section 6 (Indemnity); (ii) claims for attorneys’ fees and other litigation costs either party becomes entitled to recover as a prevailing party in any action; or (iii) Customer’s obligation to make payments to Five9NS pursuant to Section 3 above; or (iv) Customer’s breach of Five9NS’ intellectual property rights.
a) Confidential Information . “Confidential Information” refers to the following items one party to this Agreement (the “Disclosing Party”) discloses to the other (the “Receiving Party”): (i) any document the Disclosing Party marks “Confidential”; and (ii) any information the Disclosing Party orally designates as “Confidential” at the time of disclosure, provided the Disclosing Party confirms such designation in writing within 30 business days. Notwithstanding the foregoing, Confidential Information does not include information that: (A) is in the Receiving Party’s possession at the time of disclosure; (B) is independently developed by the Receiving Party without use of or reference to Confidential Information; (C) becomes known publicly, before or after disclosure, other than as a result of the Receiving Party’s improper action or inaction; or (D) is approved for release in writing by the Disclosing Party.
(b) Nondisclosure Obligations. The Receiving Party will not use Confidential Information for any purpose other than to facilitate the transactions set forth in this Agreement (the “Purpose”). The Receiving Party: (i) will not disclose Confidential Information to any employee or contractor of the Receiving Party unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with the Receiving Party with terms no less restrictive than those of this Section 8; and (ii) will not disclose Confidential Information to any other third party without the Disclosing Party’s prior written consent. Without limiting the generality of the foregoing, the Receiving Party will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. The Receiving Party will promptly notify the Disclosing Party of any misuse or misappropriation of Confidential Information that comes to the Receiving Party’s attention. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party will give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.
(c) Injunction. The Receiving Party agrees that breach of this Section 8 might cause the Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the Disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
(d) Termination and Return. The obligations of Subsection 8(b) above will terminate 3 years after disclosure of the item of Confidential Information in question. Upon termination of this Agreement, the Receiving Party will return all copies of Confidential Information to the Disclosing Party or certify, in writing, the destruction thereof.
(e) Retention of Rights . This Section 8 does not transfer ownership of Confidential Information or grant a license thereto. Except to the extent that another section of this Agreement specifically provides to the contrary, the Disclosing Party will retain all right, title, and interest in and to all Confidential Information.
(a) Termination for Breach. Either party may terminate this Agreement for material breach by written notice, effective in 30 days unless the other party first cures such breach.
(b)Termination for Bankruptcy . Either party may terminate this Agreement for cause by written notice, without opportunity to cure, in the event that: (i) the other party fails to function as a going concern; (ii) a receiver, trustee, or other custodian for the other party or its assets is appointed, applied for, or consented to; (iii) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course; (iv) the other party makes an assignment for the benefit of creditors; or (e) the other party is liquidated or dissolved, or any proceedings are commenced by or against it under any bankruptcy, insolvency or debtor’s relief law.
(e) Effect of Termination . The following provisions will survive termination of this Agreement: Sections 3 through 8, Sections 10 through 14, and any other provision of this Agreement that must survive termination to fulfill its essential purpose.
(a) General Regulatory Compliance . Each party, at its own expense, will comply with all applicable laws, orders and regulations of any governmental authority with jurisdiction over its activities in connection with this Agreement. Each party will furnish to the other any information required to enable the other party to comply with applicable laws and regulations related to the Products.
(b) Import/Export Compliance . Customer will not, directly or indirectly, export, re-export or transship Products in violation of any applicable export control laws and regulations of any country having jurisdiction over the Products or the parties to this Agreement (“Export Laws”), including without limitation, the U.S. Export Administration Regulations, the Enhanced Proliferation Control Initiative (EPCI) Regulations, the Foreign Asset Control Regulations and any economic sanctions imposed by the United State Government upon any foreign country. Customer represents and warrants that the Products will not be destined for a prohibited chemical, biological or nuclear weapons or missile use. Customer agrees, at Customer’s own expense, to comply with all applicable Export Laws and will, in accordance with the indemnification provisions of this agreement, indemnify, defend and hold Five9NS harmless from any claim against Five9NS due to Customer’s violation or alleged violation of the Export Laws.
During the term of any Addendum and for a period of 1 year after completion of performance pursuant to any Addendum, neither party will directly solicit for employment any then-current employee of the other.
Subject to Customer’s prior approval, which shall not be unreasonably withheld, Five9NS may use Customer’s name in promotional materials, including press releases, presentations, and customer references regarding the sale of Products or Services.
Any Software licensed hereunder is provided with Restricted Rights. Use, duplication, or disclosure for or by the government of the United States, including without limitation any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable: (i) in subparagraphs (a) through (d) of the Commercial Computer Software Restricted Rights clause at FAR 52.227-19; (ii) in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013; or (iii) in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Five9 Network Systems, LLC.
(a)Notices. Notices pursuant to this Agreement will be sent to Five9NS at 3600 West Bayshore Rd., Suite 101, Palo Alto, CA 94303, Attn: Souheil Saliba, CEO, and to the Customer address set forth on a Customer purchase order or such other address as Customer may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested.
(b)Updates. Five9NS reserves the right to update this Agreement at any time, effective upon posting an updated version at www.five9network.com ; however, Customer’s rights and obligations shall be as provided in the version of this Agreement executed by Customer or available to Customer at the time of Customer purchase of the Products and Services provided hereunder.
(c)Assignment. Customer may not assign this Agreement or any of its rights and obligations hereunder without Five9NS’ express written consent. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(d)Independent Contractors . The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
(e)Entire Agreement . This Agreement (with attachments) is the entire agreement between Five9NS and Customer with respect to its subject matter and supersedes all prior verbal and written understandings, communications or agreements between Five9NS and Customer. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties.
(f)Severability. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated.
(g)Force Majeure . Neither party will be liable for any delays resulting from circumstances or causes beyond the party’s reasonable control, except for payment obligations.
(h)Conflicts among Attachments . In the event of any conflict between the terms of this main body of this Agreement and those of any attachment, the terms of this main body will govern.
(i)Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
(j)Governing Law . The laws of the State of California govern this Agreement, excluding its conflicts of laws rules and excluding the United Nationals Convention on the International Sale of Goods. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Santa Clara, California.
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END OF DOCUMENT
Five9 Networks Systems, LLC
Effective Date: December 15, 2014
"Inside a massive server sits a tiny chip that controls an enormous machine. If the chip fails, production grinds to a halt."
"Five9 Network Systems (Five9NS) of East Rochester, a provider of specialized computing solutions, knows this scenario all too well. They’re often called upon to get applications up and running, or to design custom configurations for original equipment manufacturers."
Read The Full Article from Democrat & Chronicle
Five9NS is combining its extensive experience in system design with NIS's expertise in ruggedized and MIL-spec enclosures to jointly deploy a brand new line of superior, custom-engineered, MIL-STD certified* server solutions based upon your requirements.
Engineering MIL-Spec Performance DesignFive9NS does not make any promises that the offers appearing on its website will be available to you. Any offer for products or services on this website is restricted to potential Five9NS customers who meet the qualification criteria as defined solely by Five9NS, including, without limitation, credit checks. Five9NS reserves the right, in its sole discretion, to reject any application for any such offers at any time, for any reason or no reason, without incurring any liability to you, our website users, any customers or potential customers, or any other third parties. All offers listed on our website may be discontinued at any time without notice and without any further obligation or liability to you, our website users, any customers or potential customers, or any other third parties.
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