Terms and Conditions
LAST UPDATED: June 2022
IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE GONG REALITY PLATFORM (AND ANY ASSOCIATED SOFTWARE AND WEBSITES) AND PRODUCTS AND SERVICES DESCRIBED ON YOUR ORDER FORM(S) (COLLECTIVELY, THE “SERVICES”) PROVIDED BY GONG.IO INC. AND ITS AFFILIATES (“GONG”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS AND CONDITIONS, INCLUDING USE IN ACCORDANCE WITH THE CURRENT VERSION OF ANY SUPPORTING TECHNICAL DOCUMENTATION PROVIDED TO YOU BY GONG OR AVAILABLE ON GONG’S WEBSITES (“DOCUMENTATION”). PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES YOU AGREE 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.
You must be at least 16 years old to use the Services. By agreeing to this Agreement, you represent and warrant to Gong that: (i) you are at least 16 years old; (ii) you have not previously been suspended or removed from the Services; and (iii) your use of the Services is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement and you agree to be bound by this Agreement.
Gong will provide the Services, and you may access and use the Services, in accordance with this Agreement. If you order the Services 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 Services you are ordering.
1. THE SERVICES
1.1. Subject to your compliance with the terms and conditions of this Agreement, Gong hereby grants to you a non-exclusive, non-sublicensable, revocable and non-transferable right to access and use the Services during the subscription term of this Agreement solely for your internal business purposes and pursuant to the Documentation, including any restrictions designated on an applicable Order Form.
1.2. To access certain features of the Services, you may be required to register for an account, which, among other things, will allow you to add or remove Permitted Users, control and manage certain features of the Services, and perform other administrative functions with respect to your account. “Permitted Users” means your employees, consultants, contractors, and/or agents who are authorized by you to access and use the Services under the rights granted to you pursuant to this Agreement. When you register for an account, you will be asked to provide Gong with certain information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to Gong is accurate, complete, and not misleading and that you will keep it accurate and up-to-date at all times. If you choose, or are provided with, a user name, password, or any other piece of information as part of Gong’s security procedures, you must treat such information as confidential, and you must not disclose it to any third party. You also acknowledge and agree not to provide any third party with access to the Services or portions thereof using your username, password, or other security information. Notwithstanding the foregoing, you may authorize as Permitted Users certain third parties that have integrations with Gong to access your Customer Data (and/or to upload additional data on your behalf, which data will be treated as Customer Data hereunder). You acknowledge and agree that (i) any such authorization by you will be deemed to grant Gong permission to provide such third parties with access to your Customer Data within the scope of your authorization, (ii) you will at all times remain liable for the acts and omissions of such third parties on your behalf, and (iii) any Customer Data submitted, provided, uploaded, or transferred to Gong by such third parties on your behalf may be used by Gong as contemplated herein. If you believe that your account is no longer secure, then you must immediately notify Gong at legal@gong.io. By creating an account, you also consent to receive certain electronic communications from Gong. These communications may include notices about your account and are part of your relationship with Gong. You agree that any notices, agreements, disclosures or other communications that Gong sends to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from Gong by printing a paper copy or saving an electronic copy.
1.3. You may, at your option, provide access and use rights to the Services to one or more of your Affiliates. If you provide such access and use rights, you will be wholly responsible for the acts and omissions of your Affiliate. Your Affiliate shall not have the right to take any legal action against Gong under this Agreement or any Order Form hereunder if it has not entered into a direct Order Form with Gong as described under the following paragraph.
If the Affiliate and Gong execute an Order Form which references your existing Agreement, the Affiliate may purchase the Services, hosted on a separate instance, and that Order Form will establish a new and separate agreement between the Affiliate and Gong. “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.
1.4. Gong uses commercially reasonable efforts to maintain the highest service availability. However, Gong cannot guarantee that the Services will operate in an uninterrupted or error-free manner. Gong performs service maintenance and uses commercially reasonable efforts to schedule system downtime during off-peak hours and to avoid service interruptions and delays. Gong will use commercially reasonable efforts to notify you in advance of any scheduled downtime. Gong will provide access to its Customer Support team weekdays from 5:00am – 6:00pm Pacific Time via an online portal and email, and will reply within one business day.
1.5. Gong may, directly or indirectly, suspend, terminate, or otherwise deny your, any Permitted User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Gong receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Gong to do so; or (b) Gong believes, in its good faith and reasonable discretion, that: (i) you or any Permitted User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) you or any Permitted User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 1.5 does not limit any of Gong’s other rights or remedies, whether at law, in equity, or under this Agreement.
2. EVALUATION PERIOD
2.1. If you register for a free evaluation of the Services, Gong will make the Services or any part of it available to you and your Permitted Users on an evaluation basis free of charge (“Evaluation Services”) until the earlier of (i) the end of the applicable evaluation period, (ii) the start date of any subscription to the Services that you purchase pursuant to an Order Form, 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.
2.2. THE EVALUATION SERVICES ARE PROVIDED “AS IS” FOR LIMITED EVALUATION AND TESTING PURPOSES ONLY, AND GONG DOES NOT WARRANT THAT THE EVALUATION SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION. GONG SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
3. DATA SECURITY AND PRIVACY
3.1. Gong has implemented and will maintain technical, organizational, and administrative systems, policies, and procedures designed to ensure the security, integrity, and confidentiality of Customer Data and to mitigate the risk of unauthorized access to or use of Customer Data. Gong will notify you, according to the timeframes prescribed under applicable law, if it becomes aware of unauthorized access to Customer Data. Gong will not access, disclose, view or process Customer Data except (a) as provided for in this Agreement or in Gong’s privacy policy (“Privacy Policy”), (b) as authorized or instructed by you in writing, (c) as required to perform its obligations under this Agreement, or (d) as required by applicable law. GONG HAS NO OTHER OBLIGATIONS OR LIABILITY WITH RESPECT TO ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
3.2. While using the Services, you or your Permitted Users may transfer to Gong certain Customer Data containing personal information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located (“Personal Information”). The terms of the Gong Data Processing Addendum (“DPA”) are incorporated herein by reference and apply to the processing of Personal Information.
4. YOUR UNDERTAKINGS
4.1. You assume full responsibility for your and your Permitted Users’ access to and use of the Services 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 Customer Data to authorize Gong to use, copy, process, store, transmit, distribute, perform, transform, and display the Customer Data to provide you the Services and to perform all other acts authorized by you in connection with the Customer Data.
4.2. You will not, and ensure that your Permitted Users will not, use the Services or Customer Data 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 laws; or (iv) permits 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 Services for non-business calls or abuse the Services; (ii) resell, transfer, or grant others permission to use the Services or pledge, lease, rent, or share your rights under this Agreement (including without limitation to any of your affiliates); (iii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services; (iv) modify, translate, adapt, update, reproduce, create derivative works of, duplicate, or copy all or any part of the Services; (v) except as expressly set forth herein, make any of the Services or Customer Data available to anyone other than your employees and consultants acting on your behalf or use any Services or Customer Data for the benefit of anyone other than you; (vi) use the Services in any way that damages, destroys, disrupts, disables, impairs, restricts, inhibits, or otherwise impedes or harms in any manner the Services, the information technology infrastructure used by or on behalf of Gong in performing the Services, or Gong’s provision of services to any third party; (vii) 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 through the Services or any of the Services’ security and traffic management devices; (viii) attempt to decompile, disassemble, re-engineer or reverse engineer the Services or otherwise create or attempt to create or permit, allow, or assist others to extract source code of the Services; (ix) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of Gong or any third party or that violates any applicable law, Gong policies, or the operational or security mechanisms of the Services; (x) input, upload, transmit, or otherwise provide to or through the Services, any virus, worm, malware, or other malicious computer code; or (xi) permit any third party to do any of the above.
4.4. The Services may include or incorporate third-party products, materials, information, or intellectual property (“Third-Party Components”). Third-Party Components are owned by third parties and not by Gong and may be provided to you under terms and conditions that are in addition to and/or different from those contained herein. Gong will not be liable for any termination, breach of terms, or suspension of Services resulting from your or your Permitted Users’ use of any Third-Party Components. Although the Services are provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict, you from obtaining Third-Party Components under the applicable third-party licenses or limiting your use of Third-Party Components under those third-party licenses.
4.5. You may not access or use the Services if you are a direct competitor of Gong, or for monitoring the Services’ availability, performance, functionality, or for any other benchmarking or competitive purposes.
5. SUBSCRIPTION FEES
5.1. In consideration for the right to use the Services under the terms herein, you will pay subscription fees in the amount and subject to the payment terms set forth in your Order Form. Unless otherwise agreed in writing by the parties, the price on the Order Form will apply to any additional subscriptions you purchase during the subscription term. You agree that in the event Gong is unable to collect the subscription fees owed to Gong for the Services, 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, if you fail to make any payment when due, then, in addition to all other remedies that may be available: (i) 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; and (ii) if such failure continues for 7 days following written notice thereof, Gong may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to you by reason of such suspension. 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. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Gong regarding future functionality or features.
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 Services, 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 and the relevant Order Form(s) will be deemed amended accordingly. You will receive standard updates to the Services that are made generally available by Gong during the subscription term specified in the Order Form. However, Gong reserves the right to offer additional functionality or premium feature improvements for an additional cost. All rights not expressly granted herein are reserved by Gong and its licensors.
6. PROPRIETARY RIGHTS; YOUR FEEDBACK
6.1. For purposes of this Agreement, “Customer Data” means electronic data and information (including data sets, compilations, or aggregations of the foregoing) submitted by you or on your behalf to the Services or collected and processed by you or on your behalf using the Services. As between you and Gong, you shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Gong. You hereby grant to Gong a non-exclusive, worldwide, limited term, royalty-free right to access, use, copy, process, store, transmit, distribute, perform, transform, and display the Customer Data and derivatives thereof in connection with providing the Services and to comply with applicable laws.
6.2. In addition, Gong may process aggregated and anonymous general platform usage data and extracts of Customer Data on an anonymized basis for Gong’s legitimate business purposes, including for machine learning and testing, development, controls, and operation of the Services (“Usage Data”). For clarity, nothing in this Section 6.2 gives Gong the right to publicly identify you or any individual user as the source of such Usage Data. You hereby unconditionally and irrevocably assign to Gong all of your right, title, and interest in and to the Usage Data, including all intellectual property rights relating thereto.
6.3. The Services 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 Customer Data, all right, title, and interest in and to the Services and derivatives thereof, in each case, including all intellectual property rights therein, are retained by Gong. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Services or Third-Party Components, whether expressly, by implication, estoppel, or otherwise.
6.4. You and your Permitted Users, from time to time, may submit comments, information, questions, data, ideas, descriptions of processes, or other information relating to the Services to Gong (“Feedback”). Gong may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise, provided Customer shall not be identified in connection with any such Feedback without Customer’s consent in its sole discretion.
7. LINKS TO THIRD-PARTY WEBSITES AND APPLICATIONS
7.1. The Services may contain links and references to third-party websites and applications. Gong may, from time to time, at our sole discretion, add or remove these links and references. 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 respect to such third-party websites or applications. Please be sure to review the terms of use and privacy policy of any third-party websites or applications before you share any Customer Data or information with such third-party providers. Once sharing occurs, Gong will have no control over the information that has been shared.
8. WARRANTIES; DISCLAIMER
8.1. Each of you and Gong represent to the other that: (a) it has the full corporate right, power and authority to enter into, and perform its obligations under, this Agreement; (b) the execution of this Agreement, and the performance of its obligations herein, does not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes its legal, valid and binding obligation.
8.2. Gong warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) Gong will not materially decrease the overall security of the Services, (c) the Services will perform in accordance with the applicable Documentation, in all material respects, and (d) Gong will not materially decrease the overall functionality of the Services. For any breach of a warranty above, your exclusive remedies are those described in termination and refund of payment provisions in Section 11 below.
8.3. EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GONG EXPRESSLY DISCLAIMS 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, GONG MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICES MEETING YOUR REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE; (II) WHETHER YOUR USE OF THE SERVICES OR CUSTOMER DATA WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION.
9. PRIVACY AND OTHER POLICIES
Use of the Service is also subject to Gong’s Privacy Policy (available at: https://www.gong.io/privacy-policy/). The Privacy Policy and all policies posted on www.gong.io are incorporated into this Agreement by this reference.
10. CONFIDENTIALITY
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 (i) was rightfully in the possession of, or was known by, the receiving party prior to its receipt from the disclosing party, without an obligation to maintain its confidentiality, (ii) was or has become publicly available without violation of this Agreement, (iii) is obtained by the receiving party from a third party, without an obligation to keep such information confidential, or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
10.2. Each party will: (i) hold the other party’s Confidential Information in strict confidence, (ii) use it only subject to the terms of the Agreement and for the sole purpose of performing obligations set forth herein, (iii) allow its use only by the receiving party’s employees and consultants who have signed in advance a confidentiality agreement containing terms similar to the Agreement or are under a statutory duty of confidentiality and on a need-to-know basis and pursuant to the terms of the Agreement, (iv) not make the other party’s Confidential Information available to any third party unless to the extent required by applicable law or as expressly set forth herein, (iv) implement adequate security measures to ensure against unauthorized access to, use or copying of, the other party’s Confidential Information, and (v) 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 the Gong Privacy Policy.
11. TERM AND TERMINATION
11.1. This Agreement is effective beginning when you (a) accept this Agreement, (b) register for an account, or (c) access or otherwise use the Services, in each such case whichever occurs first, and ending when terminated as described in this Section 11.
11.2. The initial subscription term for the Services will be as set forth and agreed upon by the parties in an applicable Order Form.
11.3. Either you or Gong may terminate the Agreement if the other party (i) materially breaches the 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 the Agreement or 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 which is not dismissed within 30 days of the filing thereof.
11.4. At the end of the initial subscription term, except as otherwise specified in an Order Form, all Gong subscriptions purchased by you pursuant to an Order Form (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 (the initial subscription term, along with any renewal subscription terms, are referred to as the “subscription term”).
11.5. Upon termination or expiration of the Agreement; (a) you will immediately cease use of the Services and all rights granted to you under the Agreement will terminate; (b) we will make the Customer Data, including your recorded calls, available to you for download or export for a period of 30 days following such termination and then will delete same, and (c) Sections 4.1, 6.4, 8.3, 10, 11.5, 12 – 14, 17, and 18 survive termination of the Agreement.
11.6. In the event of a termination due to an uncured breach by Gong pursuant to Section 11.3, Gong will refund you any prepaid subscription fees for Services that have not been provided under the applicable Order Form on a pro-rated basis. If this Agreement is terminated by Gong in accordance with Section 11.3 above, you will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve you of your obligation to pay any fees payable to Gong for the period prior to the effective date of termination.
12. LIMITATION OF LIABILITY
12.1. Limitation of Liability. EXCEPT FOR LIABILITIES ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION), EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE SERVICES WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY GONG FROM YOU FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “SUBSCRIPTION FEES” SECTION ABOVE.
12.2. Exclusion of Consequential and Related Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL A 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 PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. 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.
13. LIMITATION OF CLAIMS
Any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within two years after such claim or cause of action arose, or be forever barred.
14. INDEMNIFICATION
14.1. Gong shall (a) defend you from and against any claim by a third party alleging that the technology underlying the Services, when used as authorized under this Agreement, infringes or misappropriates such third party’s trademark, United States patent, copyright, or trade secret, and (b) in relation to such claim, indemnify and hold you harmless from any damages and costs finally awarded or agreed to in settlement by Gong (including reasonable attorneys’ fees). The foregoing limitation does not apply to the extent that the alleged infringement or misappropriation arises from: (i) Third-Party Components; (ii) Customer Data; (iii) access to or use of the Services in combination with any hardware, system, software, network, or other materials or service not provided by Gong; (iv) modification of the Services other than by or on behalf of Gong; (v) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to you by or on behalf of Gong; (vi) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants, or obligations under this Agreement; (vii) the gross negligence or willful misconduct of you, any of your Permitted Users or any third party acting on your behalf. If any of the Services are, or in Gong’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if your or any Permitted User’s use of the Services is enjoined or threatened to be enjoined, Gong may, at Gong’s sole discretion and expense: (a) procure the right for you to continue to use the Services; (b) replace or modify the Services, in whole or in part, to make the Services non-infringing; or (c) terminate the Agreement and refund you any prepaid subscription fees for Services that have not been provided under the applicable Order Form on a pro-rated basis.
14.2. You shall (a) defend Gong from and against any claim by a third party arising from (i) your or your Permitted Users’ use of the Services or Third-Party Components in an unlawful manner or in violation of this Agreement, the Documentation, or Order Form, or (ii) any Customer Data or Customer’s use of Customer Data with the Services, and (b) in relation to such claim, indemnify and hold harmless Gong from any damages and costs finally awarded or agreed to in settlement by you (including reasonable attorneys’ fees).
14.3. As a condition to such indemnification each of you and Gong must 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 will 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, at the indemnifying party’s expense.
15. FEDERAL GOVERNMENT END USE PROVISIONS
Gong provides the Services 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 the 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. BETA SERVICES
For purposes of this Agreement, “Beta Services” means certain services, features, or functionality that Gong may make available to you at no additional charge for evaluation or testing purposes only (and not for production use) which are clearly designated as pre-release, beta, limited release, developer preview, non-production, or by a similar description of similar import. From time to time, Gong may make Beta Services available to you at a nominal fee or no charge in its sole discretion. Gong reserves the right, upon prior written notice to you, to start charging or to revise the fee for such Beta Services at any time at its sole discretion. You may choose to try such Beta Services at your sole discretion. Beta Services are not supported by Gong and may be subject to supplemental terms and conditions. Beta Services are not considered “Services” under the Agreement; however, all restrictions set forth herein, Gong’s reservation of rights and your obligations concerning the Services, and your use of any non-Gong services or products shall apply equally to your use of Beta Services. Unless otherwise stated or communicated to you by Gong in writing, your access to any Beta Services will expire upon the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Gong may discontinue any Beta Services at any time in Gong’s sole discretion and may never make them generally available. Gong will have no liability for any harm or damage arising out of or in connection with Beta Services.
17. INJUNCTIVE RELIEF
You acknowledge that any use of the Services contrary to the Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Gong, its affiliates, suppliers and any other party authorized by Gong to resell, distribute, or promote the Services (“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.
18. GENERAL
18.1. Entire Agreement and Order of Precedence. This Agreement, the Order Form, the Privacy Policy and the DPA comprise the entire agreement between you and Gong, state Gong’s and Gong’s suppliers’ entire liability and your exclusive remedy with respect to the Services, and supersede all prior agreements pertaining to subject matters of the Agreement, the Order Form, the Privacy Policy and the DPA, and you specifically acknowledge that you have not entered into this Agreement relying upon any oral or written public comments made by Gong regarding future functionality or features of the Services. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. The Agreement has been prepared in the English language and such version shall be controlling in all respects and any non-English version of the Agreement is solely for accommodation purposes. The section titles in this Agreement is solely for convenience and have no legal or contractual significance
18.2. Relationship of the Parties. The parties to this Agreement are independent contractors. Nothing in the Agreement will be construed as creating a partnership, agency, fiduciary or employment relationship or a joint venture between you and Gong.
18.3. Severability. If any provision of the 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.
18.4 Marketing. You grant Gong the right to use your company name and logo as a reference for marketing or promotional purposes on Gong’s website and in other public or private communications or disclosures with its existing or potential customers and investors, subject to your standard trademark usage guidelines as provided to Gong from time to time. Gong doesn’t want to list customers who don’t want to be listed, so you may send Gong an email to customer.marketing@gong.io stating that you do not wish to be used as a reference.
18.5. Modifications and Waivers. 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.
18.6. Insurance. Gong will maintain commercially appropriate insurance coverage given the nature of the Services and Gong’s obligations under the Agreement. Such insurance will be in an industry standard form with licensed insurance carriers with A.M. ratings of A- IX or better, and will include commercially appropriate cyber liability insurance coverage. Upon request, Gong will provide you with certificates of insurance evidencing such coverage.
18.7. Anti-Corruption. Each of Gong and you acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any employee, representative or agent of the other party in connection with the Agreement. Each party will use reasonable efforts to promptly notify the other party if it becomes aware of any circumstances that are contrary to this acknowledgment.
18.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Gong will refund you any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
18.9. Force Majeure. Except for payment of subscription fees and each party’s confidentiality obligations, neither party will be deemed to be in breach of the 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.
18.10. Governing Law and Venue. The 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 of the state and federal courts located in San Francisco County, California, USA, except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court of competent jurisdiction. 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.