LAST UPDATED: April 25, 2020
IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE SERVICE (AND ASSOCIATED SOFTWARE) (COLLECTIVELY, THE “SERVICE”) OF GONG.IO, INC. AND ITS AFFILIATES (“GONG”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY CLICKING THE “I AGREE” BUTTON/BOX, ACCESSING THE GONG WEBSITE OR BY UTILIZING THE GONG SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED POLICIES (THE “AGREEMENT”). THE GONG SERVICE IS NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.
Gong will provide the Service, and you may access and use the Service, in accordance with this Agreement. If you order the Service through an online registration page or an order form (each an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Service you are ordering.
1. THE SERVICE
1.1 The Service is a cloud-based sales conversation intelligence platform. It is designed to enable you to record, transcribe, analyze and share your sales team’s audio and video calls and online demos (together with all other information data that you make accessible to Gong, “Content“).
1.2 Gong provides you a right and permission to use the Service subject to a valid subscription, pursuant to the terms of the Order Form, or subject to free evaluation terms, as further detailed below.
1.3 Upon your subscription to the Service, Gong will grant you access to the Service or certain parts of it, which will allow Gong or you to add end-user accounts (“Permitted Users“) and to control or manage certain features of the Service. Permitted Users’ access to the Service is limited and personal. You are responsible for actions taken by Permitted Users or by anyone using your accounts and passwords.
1.4 Gong uses commercially reasonable efforts to maintain the highest Service availability. However, Gong cannot guarantee that the Service will operate in an uninterrupted or error-free manner. Gong performs Service maintenance and uses commercially reasonable effort to schedule system down-time to off-peak hours and to avoid service interruptions and delays.
2. EVALUATION PERIOD
Gong 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 pursuant to the Order Form, (ii) your purchase of a Service subscription, or (iii) any termination of the evaluation by Gong for any reason, or for no reason at all, by sending you a termination notice with immediate effect.
3. Data SECURITY
3.2 The terms of the Gong.io Data Processing Addendum (“DPA”) are incorporated by reference to this Agreement and apply to the processing of personal information which is part of your Content.
4. YOUR UNDERTAKINGS
4.1 You assume full responsibility for your and your Permitted Users’ use of the Service in accordance with this Agreement and with applicable local, state, federal, national and international laws, regulations and treaties, and warrant that you have obtained all rights in the Content to authorize Gong to input, process, distribute and display the Content as contemplated by the Agreement.
4.2 You will not, and ensure that your Permitted Users will not, use the Service or Content for any use or purpose that: (i) is obscene, libelous, blasphemous, defamatory, inciting hatred, terrorism or any similar offence; (ii) 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); (iii) 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 (iv) may drive or encourage any third party to do any of the above.
4.3 You will not, and will ensure that your Permitted Users will not: (i) use the Service for non-business calls or abuse the Service; (ii) resell, transfer, grant others permission to use the Service, pledge, lease, rent, or share your rights under this Agreement (including without limitation to any of your affiliates); (iii) modify, remove or amend Gong’s 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 intended pursuant to 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 Gong’s systems, programs or data that are not made available 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 Gong’s or others or Gong policies or the operational or security mechanisms of the Service.
4.4 When using the Service in conjunction with other third party services, you will comply with the terms of service of such third party services. Gong shall not be liable for any termination, breach of terms or suspension of service resulting from your use of the Service.
4.5 You may not access or use the Service if you are a direct competitor of Gong, or for monitoring the Service’s availability, performance or functionality, or for any other benchmarking or competitive purposes.
5. SUBSCRIPTION FEES
5.1 In consideration for the right to use the Service under the terms herein, you will pay subscription fees in the amount and payment terms under the applicable Order Form (the “Subscription Fees”). You agree that in the event Gong is unable to collect the Subscription Fees owed to Gong for the Service, Gong may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by Gong in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that Gong may collect interest at the lesser of 1.0% per month or the highest amount permitted by law on any amounts not paid when due. Except to the extent otherwise expressly stated in this Agreement or in an order form, all obligations to pay Subscription Fees are non-cancelable and all payments are non-refundable.
5.2 Your Subscription Fees are exclusive of taxes, levies, duties or similar governmental assessments of any kind (excluding taxes based on Gong’s income, property and employees). You will be responsible for paying any and all such taxes.
5.3 Gong reserves the right to modify the Subscription Fees for the Service under one or more Order Forms, effective upon commencement of the next renewal subscription term of the relevant Order Form(s), by notifying you of such change in writing at least 30 days before the end of the then-current Subscription Term.
6. PROPRIETARY RIGHTS; YOUR FEEDBACK
6.1 All parts of the Service are protected by copyrights, trademarks, service marks, patents or other proprietary rights, as a collective work or compilation, pursuant to laws and international conventions. Except for your Content, all rights to the Service and derivatives thereof are retained by Gong. In addition, Gong retains all rights to aggregated and 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 nor will such data contain information that directly or indirectly identifies you or any other person (natural or otherwise).
6.2 Gong makes 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.
6.3 In the course of using the Service, you or your Permitted Users may provide Gong with feedback and suggestions regarding the Service. You hereby assign to Gong ownership in all such feedback and suggestions and all rights therein, without any royalty or accounting obligations to you.
7. LINKS TO OTHER WEBSITES AND APPLICATIONS
The Service contains links and references to websites and applications of others. Gong may, from time to time, at our sole discretion, add or remove links. Gong has no control over these third-party websites and applications, Gong does not endorse, sponsor or confirm their content and Gong is not responsible or liable for any communication or transaction that you make with them.
8. WARRANTIES; DISCLAIMER
8.1 Each of you and Gong represent, warrant and covenant to the other that: (a) it has the full corporate right, power and authority to enter into and perform this Agreement, and such execution and performance does not and will not violate any other agreement to which it is a party, and (b) this Agreement constitutes its legal, valid and binding obligation.
8.2 The Service, when used in accordance with this Agreement, will perform in all material respects as specified in Section 1 above. Your sole and exclusive remedy under such warranty shall be for Gong to use commercially reasonable efforts to correct or to replace the affected Service with a component or service of similar functionality. The above warranty is conditioned upon you notifying Gong in writing within 30 days of discovery of any alleged defect in the Service 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 Gong, (c) is related to a virus, worms and the like that has not been introduced by Gong, or (d) was used without authorization.
8.3 EXCEPT AS EXPRESSLY 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.
8.4 NOTWITHSTANDING, DURING AN EVALUATION PERIOD, GONG PROVIDES THE SERVICE “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTIES AND REPRESENTATIONS.
9. PRIVACY AND OTHER POLICIES
10.1 “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. Gong’s 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.
11. TERM AND TERMINATION
11.1 The initial subscription term of the Agreement will be as set forth and agreed by the parties in the Order Form.
11.2 Either of you and Gong may terminate this Agreement if the other party (i) materially breached this Agreement and has not cured such breach within 30 days after receiving notice (if curable), without prejudice and in addition to any right or remedy that the non-defaulting party may have under this Agreement or the applicable law, 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.
11.3 At the end of the initial subscription term, all your Gong subscriptions (including any additional subscriptions added to your account) will renew automatically for additional 12-month periods unless you or Gong notifies the other in writing, at least 30 days prior to the end of the then-current subscription term, that it chooses not to renew (initial subscription term, with any renewal subscription terms, the “Subscription Term”).
11.4 Upon termination or expiration of this Agreement; (a) you will cease use of the Service and all rights granted to you under this Agreement will terminate; (b) upon written request, we will make your recorded calls available for you to download, or export within 30 days following such termination, and (c) Sections 4.1, 5, 6, 8, 10, 11 through 14, 17, 19 and 20 survive termination of the Agreement. Thereafter, Gong will be under no obligation to maintain your recorded calls, or make them available to you and Gong may delete any of your Content.
11.5 In the event of a termination due to uncured breach by Gong pursuant to Section 11.2, Gong will refund the remaining Subscription Fees until the end of the Subscription Term.
12. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, (i) UNDER NO CIRCUMSTANCES WILL 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 LIABILITY FOR A BREACH OF SECTION 10 (CONFIDENTIALITY), YOUR PAYMENT OBLIGATIONS AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION), EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY GONG FROM YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM. THE ABOVE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.
13. 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 years after such claim or cause of action arose, or be forever barred.
14.1 Gong will 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) that you incur in responding to a third-party claim or demand (“Claim”) alleging that the Service (excluding any Content) infringes or misappropriates any third party’s trademark, United States patent, copyright or trade secret. If a court of competent jurisdiction or Gong reasonably determines that any such claim prevails or is likely to prevail, Gong may, at Gong’s 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 Subscription Fees for the period subsequent to such termination, on a pro-rated basis.
14.2 You will indemnify, defend and hold harmless Gong, its 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 the Service, including without limitation your Content and any claims against Gong by your employees, users, consultants, customers, service providers or the like in connection with their use of the Service, and excluding Gong’s indemnification obligations pursuant to the paragraph immediately above.
14.3 As a condition to such indemnification each of you and Gong will provide the other with written notice of such claim. Neither Gong nor you will enter into any settlement or compromise of any such claim without the indemnifying party`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 Gong and you will cooperate with the other in the defense of any claim.
15. FEDERAL GOVERNMENT END USE PROVISIONS
Gong provides 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 Service 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 Gong 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.
16. COPYRIGHT PROTECTION – DIGITAL MILLENNIUM COPYRIGHT ACT
16.1 Gong respects the rights of copyright owners and expect Gong 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 the Gong Designated Copyright Agent with the following information in writing (“Notice”):
16.1.1 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;
16.1.2 a description of where the content that you claim is infringing is located on the Service; your contact information at which you may be contacted (for example, your address, telephone number, and email address);
16.1.3 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;
16.1.4 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
16.2 Following receipt of your Notice, Gong will take whatever action as Gong deems appropriate, including removal of the challenged content from the Service. Gong may ask you to provide further or supplemental information, prior to removing any content, as Gong deems necessary to comply with the provisions of the DMCA. It is Gong’s policy to respond only to Notices of alleged infringement that comply with the provisions of this section.
16.3 Gong’s Designated Copyright Agent for notices of claims of copyright infringement may be reached as follows:
Copyright Agent, Gong.io, Inc., Chief Legal Officer, subject line: Copyright Agent, email: email@example.com
17. GOVERNING LAW AND EXCLUSIVE COURTS
This Agreement will be governed by laws of the State of California, USA without regard to its choice of law or conflicts of law principles. You and Gong consent to the exclusive jurisdiction and venue in the courts in San Francisco, California, 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.
18. FORCE MAJEURE
Neither party will be deemed to be in breach of this Agreement for any failure caused by reasons beyond a party’s reasonable control (including without limitation acts of God, war or civil disturbance), and it will notify the other party as soon as practicable in writing of such failure.
19. INJUNCTIVE RELIEF
You acknowledge that any use of the Service contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Service, may cause irreparable injury to Gong, its affiliates, suppliers and any other party authorized by Gong to resell, distribute, or promote the Service (“Resellers”), and under such circumstances Gong, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
20.2 You and Gong are independent contractors with respect to each other, and nothing in this Agreement will be construed as creating a partnership, agency, fiduciary or employment relationship or a joint venture between you and Gong.
20.3 If any provision of this Agreement is held to be contrary to law, such provision will be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect.
20.4 The section titles in this Agreement are solely for convenience and have no legal or contractual significance. No provision of the Agreement will be construed against Gong but rather will 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.
20.5 All modifications to or waivers of any term of this Agreement must be in a writing signed by you and Gong and expressly reference this Agreement. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right under the Agreement will not constitute a waiver.
20.6 Gong suppliers are beneficiaries of the limitations, obligations and restrictions contained in this Agreement that are protective of Gong or the Service.
20.7 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).