Gong Purchase Order Terms
V. JANUARY 2023
These Purchase Order Terms, including all referenced attachments (e.g., corresponding order forms or statements of work) (“Order”) becomes the complete agreement between the specified Gong entity (“Buyer”) and the specified supplier, vendor or other provider (“Supplier”) with respect to Supplier’s provision of goods or services and related deliverables, if any. The Order will be deemed accepted by Supplier upon signature, Supplier acknowledging acceptance by return email, or upon delivering any of the items or commencing performance of any of the services. Supplier will sell and deliver to Buyer the products, equipment, goods, or services (“Deliverables”), described in the Order. Any additional or different terms other than as provided herein are hereby deemed material alterations and notice of objection and rejection of them is hereby given. Buyer and Supplier are referred to individually as a “Party” and together as the “Parties.”
1. Price and Payment
The prices specified in the Order constitute full amounts due to Supplier for the Deliverables; and include all applicable fees, taxes, assessments and other amounts payable to any governmental or regulatory authority. Payment is due from Buyer to Supplier 30 days after Buyer receives Supplier’s correct invoice.
2. Shipment and Delivery
a. Timing. Time is of the essence in the performance of Supplier’s obligations under the Order. If Supplier encounters or anticipates any delay, Supplier will immediately notify Buyer of the anticipated duration of the delay and the action being taken by Supplier to overcome or mitigate the delay. Buyer’s acceptance of Supplier’s notice does not constitute Buyer’s waiver of any of Supplier’s obligations.
b. Incorrect Delivery. Supplier will deliver the Deliverables in accordance with the delivery instructions (e.g., carrier, insurance, shipping destination and delivery schedule) specified in the Order. Incorrect deliveries are Deliverables delivered: (i) incorrectly of the amounts stated on the Order; (ii) after the delivery date specified on the Order; (iii) with damage; or (iv) with the incorrect Deliverables. In the event of an incorrect delivery, at Buyer’s option, Buyer may choose to receive either full or partial refund or replacement.
c. Packaging. All packaging, marking and delivery must comply with Buyer’s written instructions, if applicable. Supplier shall preserve, pack, package, and handle the Deliverables to protect them from loss or damage and in accordance with appropriate commercial practices and/or Buyer’s specifications. Supplier shall be liable for and shall promptly refund to Buyer the amount of any loss or damage due to Supplier’s failure to properly preserve, pack, package or handle such Deliverables. Supplier shall include with each shipment of products an itemized packing list which sets forth the number of the relevant Order, goods Deliverables, a description and the quantity of each of the Deliverables shipped, and the date of shipment. The Order number shall be plainly visible on every invoice, package, bill of lading, and shipping order provided by Supplier.
Buyer’s acceptance of any Deliverable will be subject to inspection and testing by Buyer after receipt of the Deliverable or completion of the Deliverable. At Buyer’s request, Supplier will make the Deliverables available for inspection and testing prior to delivery or completion. No inspection, test, or failure to discover any defect or noncompliance will relieve Supplier of any of its obligations or impair any right or remedy of Buyer.
Supplier warrants that: the Deliverables will comply with all applicable designs, specifications, drawings, samples, descriptions and other requirements of the Order; the Deliverables will be free from defects in materials and workmanship; the Deliverables will be free from defects in design, except to the extent such items comply with detailed designs provided by Buyer; the Deliverables will be suitable for the purposes intended, whether expressed or reasonably implied; and the Deliverables will be delivered free from all liens, claims and encumbrances. Supplier will comply with all applicable laws. Supplier will promptly correct any failure to comply with this warranty (e.g., by repair or replacement of any non-complying Deliverables, reperformance of any noncomplying service Deliverables or removal of any encumbrances). If Supplier fails or indicates its inability or unwillingness to do so, Buyer may correct the noncompliance at Supplier’s expense or cancel the Order, in whole or in part, without liability or obligation to Buyer.
If any of the Deliverables delivered by Supplier do not meet the warranties specified herein or otherwise applicable, Buyer has the right, at its option, to as the case may be: (i) require Supplier to correct any defective or nonconforming Deliverables by repair or replacement and/or re-perform the service Deliverables at no charge to Buyer; (ii) return any defective or nonconforming Deliverables to Supplier at Supplier’s expense and recover from Supplier all amounts paid heretofore; (iii) correct the defective or nonconforming Deliverables themselves and charge Supplier the cost of such correction; (iv) obtain a refund from Supplier for all amounts paid for any defective or nonconforming Deliverables or (v) use the defective Deliverables and require an appropriate reduction in price. Buyer’s approval of Supplier’s Deliverables will not relieve Supplier of the warranties set forth herein, nor will Buyer’s waiver of a requirement pertaining to any acceptance criteria, drawing or specification for one or more of the Deliverables constitute a waiver of such requirements for the remaining Deliverables to be delivered hereunder unless Buyer declares otherwise in writing.
If applicable, Supplier will perform its services in a workmanlike and skillful manner. Supplier is an independent contractor of Buyer. Supplier will not subcontract any Deliverables without the prior written consent of Buyer. While on Buyer’s premises, Supplier will comply with Buyer’s policies, rules and practices relating to access, safety, security and conduct and will be responsible for its agents.
The Parties may make changes in the requirements of the Order by mutual written agreement. If any change causes an increase or decrease in the cost of or time required for performance of the Order, an equitable adjustment in the prices and schedules will be made and agreed upon in writing by the Parties; provided that the Party desiring the adjustment notifies the other Party thereof within 30 days after the other Party’s notice of the change. In making any equitable adjustment, Supplier will not be entitled to: any allowance for profit, overhead, underutilization of facilities or indirect cost related to deleted Deliverables; any increase in the price of unchanged Deliverables; any payment for the deletion of Deliverables or other items that are standard stock or off-the-shelf items; or any payment for materials, parts or other items not purchased by Supplier specifically for performance of the Order.
7. Items furnished by Buyer
If applicable, any materials, parts, tooling and other items provided or paid for by Buyer (e.g., drawings, designs, specifications and other documentation) will be the property of Buyer. Supplier will: mark such items as property of Buyer; use such items solely for performance of the Order; separately store such items when not in use; protect such items from loss, damage or destruction; deliver such items to Buyer upon demand; and take such action, including but not limited to execution, delivery and filing of documents) as may be requested by Buyer to evidence, perfect or protect Buyer’s interests in such items.
8. Confidentiality and Intellectual Property
If applicable, Supplier will protect all confidential information, materials and property of Buyer from unauthorized use or disclosure. Supplier will not use any name, trademark, logo, reference or other identifier of Buyer or its affiliates in any advertising or publicity without Buyer’s prior written consent. Buyer will be the owner of any copyrights, trademarks, patents and other intellectual property rights (“IPR”) that may arise out of the creation of any Deliverables or performance of any service Deliverables. Supplier hereby assigns any such IPR to Buyer. Supplier will take such additional action (such as the execution of additional documents and giving of testimony) as Buyer may reasonably request to effect, perfect or evidence its ownership of any IPR. No IPR of Buyer is assigned, licensed or transferred to Supplier under the Order. For avoidance of doubt, Buyer retains all rights and ownership interests to any of its pre-existing copyrights, trademarks, patents and other intellectual property rights, and nothing herein transfers any of these pre-existing rights to Supplier.
Supplier will defend and indemnify Buyer, its affiliates and their respective directors, officers, employees, agents and representatives (“Indemnitees”) from any claim, liability, damage, loss, cost and expense (including attorneys’ fees and court costs) based upon any: property damage or personal injury involving the Deliverables or any negligent conduct of Supplier or any of its employees, subcontractors or suppliers on Buyer’s premises; infringement of any IPR by any Deliverable; or product liability with respect to any Deliverable. Supplier will maintain adequate insurance, and provide evidence thereof to Buyer at Buyer’s request, to cover its obligations hereunder.
10. Compliance with Laws
Supplier will comply (and will ensure the Deliverables and Supplier’s agents comply) with all applicable laws, rules, regulations, orders and other requirements of any governmental or regulatory authority. Supplier will furnish such documents as may be required to effect or evidence such compliance. All Deliverables of foreign origin imported into the U.S. will be legibly, conspicuously and permanently marked with the country of origin; and Supplier does not maintain or permit its employees to work at any facilities that are segregated on the basis of race, color, religion, national origin, age or sex.
Supplier will not assign the Order without Buyer’s prior written consent. No assignment will relieve Supplier of any obligations under the Order. Subject to the foregoing, the Order will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
Buyer’s failure to insist upon Supplier’s performance of any term of the Order, or to exercise any right or remedy, will not constitute a waiver, release or limitation of any such term, right or remedy in that or any other instance.
13. Contracting Entity; Applicable Law; Courts
Supplier’s physical address will determine the contracting Gong entity entering into the Order. For the Order, “Supplier Location” means Supplier’s shipping or physical address.
If Supplier is located in Israel, then Supplier is contracting with Gong.io Ltd. of 40 Tuval Street
39th Floor, Ramat Gan 52522, Israel, and the Order is governed by the laws of Israel without reference to conflicts of law principles. For contracts with Gong.io Ltd., both Parties consent to the exclusive jurisdiction and venue of the courts located in Israel for all disputes arising out of or relating to the Order.
If Supplier is located in Europe (including the United Kingdom and Iceland), the Middle East, or Africa, then Supplier is contracting with Gongio Ireland Limited of Grand Canal House, 1 Grand Canal Street, Upper Dublin D04 Y7R5, Ireland, and the Order is governed by the laws of the Republic of Ireland without reference to conflicts of law principles. For contracts with Gongio Ireland Limited, both Parties consent to the exclusive jurisdiction and venue of the courts located in Dublin, Ireland for all disputes arising out of or related to the Order.
If Supplier is located in North America, South America, or in a geographic region that does not fall into one of the designations described above, then Supplier is contracting with Gong.io Inc. of 265 Cambridge Ave, Suite
60717, Palo Alto, CA 94306, and the Order is governed by the laws of the State of California, without reference to its conflict of laws principles. For contracts with Gong.io Inc., the Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco County, California for all disputes arising out of or related to the Order.
Upon the occurrence of any one of the following events, Buyer will have the unrestricted right, at its option, to cancel and terminate the Order without cost or liability to Buyer in case of: (1) Supplier’s insolvency or inability to meet obligations as they become due; (2) the filing of voluntary or involuntary petition of bankruptcy by or against Supplier; (3) the institution of legal proceedings against Supplier by creditors or stock holders; (4) appointment of a receiver for Supplier by any court of competent jurisdiction; or (5) a failure of shipment or delivery under section 2, above.
15. Entire Agreement
This Order sets forth the entire agreement, and supersedes any and all prior agreements, between the Parties regarding the subject matter of the Order. No amendment or modification will be valid unless in writing signed by the Party to be bound thereby. The rights, remedies and warranties of each Party under this Order are cumulative and in addition to any other rights, remedies or warranties afforded to the Party by the other Party or by applicable law.