Terms and Conditions

LAST UPDATED: May 2024

IMPORTANT, READ CAREFULLY: Customer’s use of and access to the Gong Revenue Intelligence™ platform (and any associated software and websites) and products and services described on Customer’s order form(s) (collectively, the “Services”) provided by Gong.io Inc. and its affiliates (“Gong”) is conditioned upon Customer’s compliance with and acceptance of these Terms and Conditions, including use in accordance with the current version of any supporting technical documentation provided to Customer by Gong or available on Gong’s websites.

BY ACCEPTING THIS AGREEMENT—WHETHER BY (1) CLICKING A BOX TO INDICATE ACCEPTANCE, (2) SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING THE EVALUATION SERVICES—THE CUSTOMER AGREES TO BE BOUND BY ITS TERMS. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEY REPRESENT THAT THEY HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS AND CONDITIONS. IN SUCH CASES, “CUSTOMER” REFERS TO THE ENTITY. IF THE INDIVIDUAL DOES NOT HAVE THIS AUTHORITY OR DOES NOT AGREE TO THESE TERMS, THEY MUST NOT ACCEPT THIS AGREEMENT OR USE THE SERVICES.

BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES, CUSTOMER EXPRESSLY AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL ORDER FORMS AND POLICIES INCORPORATED HEREIN BY REFERENCE (THE “AGREEMENT”). THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.

1. Gong Services

1.1 Provision and Access

Gong will make the Services available to Customer pursuant to this Agreement and the applicable Order Form and then-current version of any supporting technical documentation provided to Customer by Gong or available on Gong’s website (“Documentation”). The Services are provided on a subscription basis for the applicable subscription term. Gong hereby grants to Customer a non-exclusive, non-transferable, worldwide right during the subscription term to access and use the Services solely for Customer’s internal business purposes and pursuant to the Documentation, including any restrictions designated on an applicable Order Form. Customer may provide users with user IDs and passwords to access and use the Services (“Permitted Users”).

1.2 Affiliate Access and Use

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2.1 Access Through Customer

Customer may, at its option, provide access and use rights to the Services to one or more Customer Affiliates, subject to all terms in this Agreement. If Customer provides such access and use rights, Customer will be wholly responsible for the acts and omissions of the Customer Affiliate. No Customer Affiliate shall have the right to take any legal action against Gong under this Agreement or any Order Form hereunder who has not entered into a direct Order Form with Gong under Section 1.2.2 (Separate Affiliate Ordering) below.

1.2.2 Separate Affiliate Ordering

Subject to the parties executing a mutually agreed upon Order Form, Customer Affiliates may purchase the Services, hosted on a separate instance, by signing an Order Form that references this Agreement directly with Gong, which will establish a new and separate agreement between the Customer Affiliate and the Gong entity signing such Order Form.

1.3 Customer Responsibilities

• Be responsible for Permitted Users’ compliance with this Agreement, Documentation and Order Forms;
• Be responsible for the accuracy, quality and legality of Customer Data and its use;
• Use commercially reasonable efforts to prevent unauthorized access and notify Gong of any such unauthorized access or use;
• Use Services only in accordance with this Agreement, Documentation, Order Forms and applicable laws;
• Comply with terms of service of any third-party applications with which Customer elects to use with the Services.

Any use of the Services in breach of the foregoing by Customer or Permitted Users that in Gong’s judgment threatens the security, integrity or availability of the Services may result in Gong’s immediate suspension of the Services, however Gong will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

1.4 Use Restrictions

Customer shall not:

• Use the Services for non-business calls;
• Resell, transfer, pledge, lease, rent, or share Customer’s rights under this Agreement;
• Modify, remove or amend Gong’s name or logo, or copy any part of the Services;
• Make the Services or content generated by the Services available to anyone other than Customer’s employees and consultants;
• Access or attempt to access any of Gong’s systems not made available for public use;
• Use the Services for benchmarking or for developing a competing product;
• Decompile, disassemble, or reverse engineer any portion of the Services;
• Access or use the Services if Customer is a direct competitor of Gong.

1.5 Support

Gong uses commercially reasonable efforts to maintain high service availability. Scheduled maintenance will occur during off-peak hours with advance notice. Support is available weekdays 6:00am–6:00pm Pacific Time via an online portal.

1.6 Evaluation Services

Gong may offer the Services on an evaluation basis (“Evaluation Services”) until the earlier of: (i) end of the evaluation period; (ii) start date of any purchased subscription; or (iii) termination by Gong. Evaluation Services are provided “AS IS” for limited evaluation purposes only.

2. Proprietary Rights and Licenses

2.1 Reservation of Rights

Subject to the limited rights expressly granted herein, Gong and its Affiliates reserve all rights, title and interest in and to the Services and their related intellectual property rights.

2.2 Customer Data; License by Customer to Gong

“Customer Data” means data submitted by or for Customer to the Services. Customer grants Gong a non-exclusive, worldwide, limited term, royalty-free right to host, use, copy, transmit and display Customer Data as necessary to provide the Services.

2.3 Feedback

Customer grants Gong a perpetual, irrevocable, royalty-free license to use and incorporate any feedback provided by Customer into its services.

3. Subscriptions; Term; Fees and Payment

3.1 Subscriptions

Services are purchased as subscriptions. Subscriptions may be added during a term at prorated pricing and will terminate on the same date as underlying subscriptions.

3.2 Term of Agreement

This Agreement commences on the date Customer first accepts it and continues until all subscriptions expire or are terminated.

3.3 Term of Subscriptions

Subscription terms are specified in the Order Form and automatically renew for one-year periods unless either party provides notice 60 days prior to term end.

3.4 Fees and Payment

All fees are set forth on the Order Form and payable within 30 days of the effective date. Fees are non-refundable and non-cancelable. Late payments may incur service charges up to 1.0% per month or maximum allowed by law.

3.5 Suspension of Service and Acceleration

If any payment is overdue, Gong may accelerate unpaid fees and suspend Services after 10 days’ written notice.

4. Confidential Information

Each party agrees to hold confidential information of the other in confidence and not disclose it except as required to perform under this Agreement or as required by law.

“Confidential Information” excludes information that is publicly known, lawfully possessed prior to disclosure, rightfully received from a third party without restriction, or independently developed.

5. Representations; Warranties; Disclaimers

5.1 Representations

Each party represents it has authority to enter into this Agreement and that performance does not violate other agreements.

5.2 Warranties

Gong warrants the Services will perform in accordance with the Documentation in all material respects during subscription term.

5.3 Disclaimers

EXCEPT AS EXPRESSLY PROVIDED ABOVE, GONG DISCLAIMS ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

6. Indemnification

6.1 Gong Indemnification

Gong will defend and indemnify Customer against third-party claims that the Services infringe intellectual property rights, subject to certain conditions and limitations.

6.2 Customer Indemnification

Customer will defend and indemnify Gong against third-party claims arising from Customer Data or Customer’s breach of this Agreement.

6.3 Procedures

Indemnification obligations require prompt written notice, control of defense and reasonable assistance.

7. Limitation of Remedies and Damages

7.1 Limitation of Liability

EXCEPT FOR INDEMNIFICATION OBLIGATIONS, EACH PARTY’S AGGREGATE LIABILITY WILL NOT EXCEED FEES RECEIVED BY GONG FROM CUSTOMER IN THE PRIOR 12 MONTHS.

7.2 Exclusion of Consequential Damages

UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.

8. Data Security

8.1 Protection of Customer Data

The Gong Data Processing Addendum (“DPA”) applies to personal information processed by Gong. See Gong’s Privacy Policy at www.gong.io/privacy-policy/.

8.2 Data Maintenance and Backup Procedures

Gong will use commercially reasonable efforts to restore lost Customer Data from backups but is not responsible for loss caused by Customer or third parties.

9. Termination

9.1 Termination

Either party may terminate for uncured material breach after 30 days’ written notice.

9.2 Refund or Payment upon Termination

If Customer terminates for Gong’s breach, Gong will refund prepaid fees for unused term. If Gong terminates for Customer’s breach, Customer pays unpaid fees.

9.3 Surviving Provisions

Sections on Evaluation Services, Fees and Payment, Proprietary Rights, Confidentiality, Disclaimers, Indemnification, Limitation of Remedies, Refund or Payment upon Termination, Surviving Provisions and Data Security will survive termination.

9.4 Effect of Termination

Upon termination, all rights granted cease and Customer must stop using Services. Customer Data export available for 30 days, then Gong will delete data.

10. Federal Government End Use Provisions

The Services for federal government end use are subject to restricted rights as defined in the Agreement, and additional negotiations may be required for special government rights.

11. Beta Services

“Beta Services” are pre-release or developer preview features offered at no or nominal charge, intended for evaluation only. Beta Services are not supported and may be subject to additional terms.

12. Injunctive Relief

Customer acknowledges that unauthorized use may cause irreparable harm to Gong and entitles Gong to injunctive relief without bond.

13. General Provisions

• 13.1 Assignment. Binding on permitted successors and assigns; assignment restricted without consent except in mergers or acquisitions.
• 13.2 Severability. Invalid provisions limited so remainder remains effective.
• 13.3 Governing Law. California law, exclusive venue in San Francisco courts; excludes CISG and UCITA.
• 13.4 Attorneys’ Fees. Prevailing party recovers reasonable attorneys’ fees.
• 13.5 Marketing. Customer grants Gong the right to use company name/logo for marketing unless Customer opts out in writing.
• 13.6 Notice. Notices to Gong by certified mail or courier; payment notices to accounts.receivable@gong.io.
• 13.7 Amendments. Must be in writing and signed by both parties; no waiver unless written.
• 13.8 Entire Agreement. Supersedes all prior agreements.
• 13.9 Force Majeure. Excused for delays due to uncontrollable events (strike, war, disaster, etc.).
• 13.10 Third Party Beneficiaries. None intended.
• 13.11 Independent Contractors. Parties are independent contractors; no agency created.
• 13.12 Government End-Users. Use restricted per FAR Part 12.212 and DFARS 227.7202.
• 13.13 Export Control. Customer complies with U.S. export/import laws and is not on prohibited party lists.