LAST UPDATED: July 20, 2016

  1. Accepting these Terms and Conditions. Welcome to Gong!
    Please read these terms and conditions carefully before using our services,
    as they constitute a legally binding agreement between you and Gong I.O Ltd.
    and govern your use of our services (“Our“,
    Us” or “We“).ANY USE OF OUR SERVICES, APPLICATIONS OR INTERFACES, AVAILABLE FROM TIME TO TIME
    ON OR IN CONNECTION WITH OUR WEBSITE OR APPLICATIONS (COLLECTIVELY AND TOGETHER
    WITH ANY ACCOMPANYING DOCUMENTATION, THE “SERVICE“),
    IS SUBJECT TO AND CONDITIONED UPON ASSENT TO AND COMPLIANCE WITH, ALL OF THE
    TERMS AND CONDITIONS BELOW (THE “AGREEMENT“). BY USING THE
    SERVICE YOU SIGNIFY YOUR CONSENT TO BE BOUND BY THE AGREEMENT AND THAT YOU HAVE
    THE CAPACITY TO FORM A BINDING CONTRACT WITH US.

    You may not access or use the Service if you are a direct competitor of Ours,
    except with Our prior written consent. In addition, you may not use or access
    the Service and any part of it for purposes of monitoring its availability,
    performance or functionality, or for any other benchmarking or competitive
    purposes.

  2. We may change the terms of this Agreement so long as such change does not materially
    change your use, rights or obligations hereunder, from time to time by sending a
    five (5) day advance notice to an email account provided by you to Us. Your
    continued use of the Service shall constitute your consent to any changes made. If
    you do not agree to the new terms, you should not use the Service.
  3. The Service.
    • The Service is a call-monitoring analytics tool intended to enable you to
      record, collect and analyze and share your calls, online demos and other
      conversations (together with all other information that may be made
      accessible to Us by you, directly or indirectly, “Content“).
    • Except if you were granted a free evaluation trial (as provided below),
      the Service is provided to you only if you hold a valid subscription to the
      Service, and may be subject to additional agreements in addition to this
      Agreement (as provided in a proposal provided to you by Us, or in any other
      agreement between you and Us).
    • Upon your subscription to the Service, you shall be granted access to the
      Service or certain parts of it, and will be able to add end-user accounts
      and control or manage certain features of the Service. Your authorized
      end-users’ access to the Service is limited and personal.
    • Although we use our best commercial efforts to maintain the highest Service
      availability, We cannot guarantee that there will be no service disruptions,
      and We may from time to time perform maintenance upon the Service resulting
      in interrupted service,
      delays or errors.
  4. Evaluation Period.
    • We may make the Service or any part of it available to you on an evaluation
      basis until the earlier of (i) the end of the applicable evaluation period
      to which you subscribed to, (ii) upon such date that you purchase a
      subscription to the Service, or (iii) any termination by Us in our sole
      discretion.
    • NOTWITHSTANDING SECTION 10 (WARRANTIES; DISCLAIMER), OR ANY OTHER PROVISION
      OF THIS AGREEMENT, DURING THE EVALUATION PERIOD THE SERVICE IS PROVIDED ON
      AN “AS IS” AND “AS AVAILABLE” BASIS.
  5. Your undertakings.
    • You shall be responsible for your and your end-users’ use of the Service and
      Content in accordance with this Agreement and with applicable local, state,
      federal, national and international laws, regulations and treaties
      (including without limitation procuring all rights necessary to allow Our
      tool to record, collect, use and share the Content,all pursuant to the
      purposes of the Service).
    • You shall not, and ensure that your end Users shall not, use the Services or
      Content for any use or purpose that: (i) is obscene, libelous, blasphemous,
      defamatory, inciting hatred, terrorism or any similar offence; (ii) is
      unlawful; (iii) infringes or misappropriates the intellectual property
      rights or violates the privacy rights of any third party (including without
      limitation, copyright, trademark, patent, trade secret, or other
      intellectual property right, moral right, or right of publicity); (iv) is in
      violation or may encourage any manner of acting that would violate any
      applicable local, state, national and foreign laws, treatises and
      regulations; or (v) may drive or encourage any third party to do any of the
      above.
    • You shall not, and shall ensure that your end-users shall not: (i) use the
      Service for non-business calls; (ii) resell, transfer, sublicense, pledge,
      lease, rent, or share your rights under this Agreement (including without
      limitation to any of your affiliates); (iii) modify, remove or amend Our
      name or logo, update, reproduce, duplicate, copy all or any part of the
      Service; (iv) make any of the Service or Content available to anyone other
      than your employees and consultants for use for your benefit as contemplated
      in this Agreement, or use any Service or Content for the benefit of anyone
      other than you; (v) use the Service in any way that restricts or inhibits
      the use of the Service; (vi) access or attempt to access any of our systems,
      programs or data that are not madeavailable for public use, or attempt to
      bypass any registration processes on the Service or any of the Service’s
      security and traffic management devices; or (vii) attempt to decompile,
      disassemble, re-engineer or reverse engineer the Service or otherwise create
      or attempt to create or permit, allow, or assist others to extract source
      code of the Service, its structural framework or allow or facilitate a third
      party, to violate or infringe any rights of Ours or others or Our policies
      or the operational or security mechanisms of the Service.
    • When used in conjunction with other third party services, you shall be
      responsible for complying with the terms of service of such third party
      services. We shall not be liable for any termination, breach of terms or
      suspension of service resulting from your use of the Services.
  6. Subscription Fees.
    • Subscription fees shall be paid in accordance to the applicable purchase
      order between you and Us (the “Subscription Fees“).
    • No refunds or credits for any paid Subscription Fees or other fees or
      payments will be provided to you if you elect to terminate your subscription
      to the Service prior to the end of your subscription term.
    • The Subscription Fees do not include any taxes, levies, duties or similar
      governmental assessments of any kind (excluding taxes based on Our income,
      property and employees). You shall be responsible for paying any and all of
      such taxes associated with your use of the Service hereunder.
  7. Proprietary Rights; Your Feedback.
    • All parts of the Service, except for your Content, are protected by
      copyrights, trademarks, service marks, patents or other proprietary rights,
      as a collective work or compilation, pursuant to laws and international
      conventions. Any rights to the Service and its derivative works not
      expressly granted herein are reserved by Us. In addition, We retain all
      rights to aggregated anonymous data derived from your use of the Service,
      with the understanding that such data will not be identifiable as belonging
      to or emanating from you.
    • We make no claim of ownership as to your Content, the trademarks of any
      third party linked or displayed on the Service, or with respect to any
      publisher or publication mentioned on the Service.
    • In the course of using the Service, you or your end-users may provide Us
      with feedback and suggestions regarding the Service. You hereby assign to Us
      ownership in all such feedback and suggestions and all rights therein,
      without any royalty or accounting obligations to you.
  8. Fair Use Policy. Your use of the Service is subject to our fair use
    policy. Unless you have purchased additional recording volume or unless it is
    otherwise stated in your service order form, you will be in violation of this policy
    if, within any calendar month of using the Service, your aggregate usage exceeds
    fifty (50) hours of audio and/or video recording times the number of paid recording
    user licenses you have purchased in your account. In any such case we reserve the
    right limit your use of Our Service.
  9. Links to Other Websites and Applications. The Service contains
    links and references to websites and applications of others. We may, from time to
    time, at our sole discretion, add or remove links. These links are provided solely
    as a convenience to you, and access to any such websites or applications is at your
    own risk. We encourage you to be aware when you leave the Service, and to read the
    terms and conditions and privacy policy of each other website and applications that
    you visit. We do not review, approve, monitor, endorse, warrant, or make any
    representations with respect to such websites or applications. In no event will We
    be responsible for the information contained in, transmissions received from, or
    your use of or inability to use, such websites or applications, or their practices.
  10. Warranties; Disclaimer.
    • Each of us represent, warrant and covenant to the other that: (a) it has the
      full corporate right, power and authority to enter into and perform pursuant
      to this Agreement, and such execution and performance does not and shall not
      violate any other agreement to which it is a party, and (b) this Agreement
      constitutes its legal, valid and binding obligation.
    • We further represent and warrant that:
      • The Service, when used in accordance with this Agreement, will
        perform in all material respects as specified in
        Section 3 above. Your sole and exclusive remedy under such warranty
        shall be for Us to use Our commercially reasonable
        efforts to correct or to replace the affected Service with a
        component of similar functionality.
        The above warranty is conditioned upon you notifying Us in writing
        of any alleged defect in the Services together
        with a documented example of such defect. This warranty shall not
        apply to any portion of the Service that (a) have been
        subject to abuse or misuse, (b) is used in combination with any
        other products, process, equipment or software not
        furnished by Us, (c) is related to a virus, warms and the like that
        has not been introduced by Us, or (d) was used
        without authorization.
      • EXCEPT AS EXRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED
        BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES
        OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
        TO THE IMPLIED WARRANTY OF MERCHANTABILITY,
        FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT
        LIMITING THE ABOVE, WE MAKE NO WARRANTY WHATSOEVER WITH
        RESPECT TO (I) THE SERVICE MEETING YOUR REQUIREMENTS, OR BEING
        UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE;
        (II) WHETHER YOUR USE OF THE SERVICE OR THE CONTENT WILL GENERATE
        ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER YOUR USE
        OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION.
  11. Privacy Policy. Your Content is subject to our
    Privacy Policy at gong.io/privacy-policy
    when You or your customers access the Service. By accessing this Service, you
    consent to the collection and use of information as described in our Privacy Policy,
    as may be amended by Us from time to time by sending a five (5) day advance notice
    to an email account provided by you to Us.
  12. Confidentiality.”Confidential Information” means all information provided by a party to other
    party, whether orally or in writing, that is designated as confidential or that
    reasonably should be understood to be confidential given the nature
    of the information and the circumstances of disclosure, and excluding any
    information that was or has become publicly available without the receiving
    party’s actions or inactions. Our confidential information includes, without
    limitation, the Service’s features, functionality and performance and your view
    of the Service. Your Confidential Information includes, without limitation, the
    Content.

    Each party shall hold the other party’s Confidential Information in strict
    confidence,
    use it only subject to the terms of this Agreement, allow its use only by the
    receiving party’s employees
    and consultants who have signed in advance a confidentiality agreement
    containing terms similar to this
    Agreement and on a need-to-know basis and pursuant to the terms of this
    Agreement, not make the
    other party’s Confidential Information available to any third party unless to
    the extent required by
    applicable law, implement adequate security measures to ensure against
    unauthorized access to,
    use or copying of the other party’s Confidential Information, and notify the
    other party in writing of any
    misuse of misappropriation of the other party’s Confidential Information of
    which the receiving party may
    become aware; in each case without derogating from the terms of Our Privacy
    Policy.

  13. Term and Termination.
    • This Agreement commences on the date you first accept it and continues until
      all subscriptions
      hereunder have expired or have been terminated.
    • Either of us may terminate this Agreement if the other party (i) materially
      breached
      this Agreement and has not cured such breach within seven (7) days after
      receiving notice
      (if curable), without derogating from any other right or remedy by law,
      equity or otherwise,
      or (ii) becomes the subject of a petition in bankruptcy or any other
      proceeding relating to
      insolvency, receivership, liquidation or assignment for the benefit of
      creditors.
      Upon termination or expiration of this Agreement; (a) you shall cease use of
      the Service and all
      rights granted to you under this Agreement shall terminate; (b) we shall
      make your Content and
      Confidential Information available to be downloaded by you for a 30 day
      period following such
      termination and thereafter reserve the right to delete any of your Content,
      and (c) Sections 5, 6, 7, 10 and 12 through 22 shall survive termination of
      the Agreement.
    • In the event of a termination due to uncured breach by Us pursuant to this
      Section 13,
      we will refund the remaining Subscription Fees until the end of your
      subscription period .
  14. Limitation of Liability.
    TO THE FULLEST EXTENT PERMITTED BY LAW, (i) UNDER NO CIRCUMSTANCES SHALL EITHER
    PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL
    DAMAGES; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS,
    EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER
    BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE; AND (ii)
    EXCLUDING INDEMNIFICATION OBLIGATIONS UNDER SECTION 17 (INDEMNIFICATION) OUR
    AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
    SERVICE SHALL NOT EXCEED THE NET REVENUE ACTUALLY RECEIVED BY US FROM YOU UNDER THIS
    AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM. ALL OF THE
    ABOVE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF
    ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES.
  15. Limitation of Claims.
    Any claim or cause of action arising out of or related to use of the Service or to
    the Agreement must be filed within two (2) year after such claim or cause of action
    arose, or be forever barred.
  16. Release.
    Without derogating from Our confidentiality obligations set forth in Section 12
    above, if you have a dispute with any of your end-users or a third party regarding
    or relating to the Service, you release Us from claims, demands and damages (actual
    and consequential) of every kind and nature, known and unknown, arising out of or in
    any way connected with such disputes. If you are a California resident, you waive
    California Civil Code §1542, which says: “A general release does not extend to
    claims which the creditor does not know or suspect to exist in his favor at the time
    of executing the release, which if known by him must have materially affected his
    settlement with the debtor.” This release does not extend to matters covered by Our
    indemnification obligations pursuant to Section 17.
  17. Indemnification.
    • We shall indemnify, defend and hold harmless you, your officers, directors,
      employees, agents and affiliates from and against all losses, liabilities,
      claims, obligations, costs and expenses (including reasonable attorneys’
      fees) arising out of or relating to any third-party claim alleging that the
      Service (excluding for avoidance of doubts, any Content) infringes or
      constitutes wrongful use of any third party’s United States intellectual
      property rights. If a court of competent jurisdiction or We reasonably
      determine that any such claim prevails or is likely to prevail, We may, at
      our sole discretion and expense: (a) procure the right for you to continue
      to use the Service; (b) replace or modify the applicable Service so that it
      no longer infringes or misappropriates, as applicable, such patent or
      copyright; or (c) terminate this Agreement and refund You any prepaid Fees
      for the period subsequent to such termination, on a pro-rated basis.
    • You shall indemnify, defend and hold harmless Us, our officers, directors,
      employees, agents and affiliates, from and against all losses, liabilities,
      claims, obligations, costs and expenses (including reasonable attorneys’
      fees) arising out of or relating to any third-party claims with respect to
      your use of, access to or reliance on the Service, including without
      limitation your Content and any claims against Us by your employees, users,
      consultants, customers, service providers or the like, and excluding Our
      indemnification obligations pursuant to the paragraph immediately above.
    • As a condition to such indemnification each of us will provide the other
      with written notice of such claim. Neither We or you will enter into any
      settlement or compromise of any such claim without the other`s prior written
      consent. The indemnifying party may assume the exclusive defense and control
      of any matter subject to indemnification. In all events, each of We and you
      shall cooperate with the other in the defense of any claim.
  18. Federal Government End Use Provisions.
    We provide the Service, including related software and technology, for ultimate
    federal government end use solely in accordance with the following: Government
    technical data and software rights related to the Services include only those rights
    customarily provided to the public as defined in this Agreement. If a government
    agency has a need for rights not conveyed under these terms, it must negotiate with
    Us to determine if there are acceptable terms for transferring such rights, and a
    mutually acceptable written addendum specifically conveying such rights must be
    included in any applicable contract or agreement.
  19. Copyright Protection – Digital Millennium Copyright Act.
    We respect the rights of copyright owners and expect Our users to the same. If you
    are a copyright work owner or an agent thereof, and you believe any content
    submitted to and hosted on the Service infringes your copyrights, you may submit a
    notification pursuant to the U.S. Digital Millennium Copyright Act (“DMCA”) by
    providing Our Designated Copyright Agent with the following information in
    writing (“Notice”):(i) sufficient details to enable identification of the copyrighted work that has
    been allegedly infringed, if multiple copyrighted works are claimed to be
    infringed, a representative list of such works;

    (ii) a description of where the content that you claim is infringing is located
    on our Services;

    (iii) your contact information at which you may be contacted (for example, your
    address, telephone number, and email address);

    (iv) a statement that you have a good faith belief that the use of the content
    identified in the Notice is not authorized by the copyright owner,
    its agent, or the law;

    (v) a statement, under penalty of perjury, that the information in the Notice is
    accurate and that you are authorized to act on behalf of the owner of the
    exclusive right that is alleged to be infringed; and

    Following receipt of your Notice, We will take whatever action as We deem
    appropriate, including removal of the challenged content from the Service. We
    may ask you to provide further or supplemental information, prior to removing
    any content, as We deem necessary to comply with the provisions of the DMCA. It
    is Our policy to respond only to Notices of alleged infringement that comply
    with the provisions of this section.

    Our Designated Copyright Agent for notices of claims of copyright infringement
    may be reached as follows:

    Copyright Agent, Gong I.O Ltd., Amit Bendov, CEO; OR by electronic mail
    at:help@gong.com

  20. Governing Law and Exclusive Courts.
    This Agreement will be governed by laws of the State of Delaware, USA without regard
    to its choice of law or conflicts of law principles. You and Us consent to the
    exclusive jurisdiction and venue in the courts in Delaware, USA, except that
    temporary relief to enjoin infringement of intellectual property rights may be
    sought in any court where such infringement has occurred. EACH PARTY WAIVES ANY
    OBJECTION (ON THE GROUNDS OF LACK OF JURISDICTION, FORUM NON CONVENIENS OR
    OTHERWISE) TO THE EXERCISE OF SUCH JURISDICTION OVER IT BY
    ANY SUCH COURTS.
  21. Force Majeure
    Neither party will be deemed to be in breach of this Agreement for any failure
    caused by reasons beyond its reasonable control (including without limitation acts
    of God, war or civil disturbance), and it shall notify the other party as soon as
    practicable in writing of such failure.
  22. General.
    This Agreement and Our Privacy Policy comprise the entire agreement between you and
    Us, state Our and Our suppliers’ entire liability and your exclusive remedy with
    respect to the Service, and supersede all prior agreements pertaining to this
    Agreement’s and Our Privacy Policy’s subject matters, and you specifically confirm
    that you have not entered into this Agreement relaying on any oral or written public
    comments made by Us regarding future functionality or features of the Service. The
    terms of any purchase order or similar document will have no effect and are hereby
    rejected. You and We are independent contractors with respect to each other, and
    nothing in this Agreement shall be construed as creating a partnership, agency
    relationship or a joint venture between us. If any provision of this Agreement is
    held to be contrary to law, such provision shall be construed, as nearly as
    possible, to reflect the original provision and the other provisions remain in full
    force and effect. The section titles in this Agreement are solely for convenience
    and have no legal or contractual significance. No provision of the Agreement shall
    be construed against Us but rather shall be construed in a neutral manner as terms
    entered into by a fully-informed party on a voluntary basis after opportunity to
    confer with advisors and legal counsel about the meaning and effects of the terms of
    this Agreement. All modifications to or waivers of any term of this Agreement must
    be in a writing signed by you and Us and expressly reference this Agreement. No
    waiver of any term of this Agreement shall be deemed a further or continuing waiver
    of such term or any other term, and any failure to assert any right under the
    Agreement shall not constitute a waiver. Our suppliers are beneficiaries of the
    limitations, obligations and restrictions contained in this Agreement that are
    protective of Us or the Service. This Agreement, and any rights granted hereunder,
    may not be transferred or assigned by a party, except to a successor of all or
    substantially all of its business or assets (by merger or otherwise).

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