Terms of Service
Last revised on March 29th, 2022
THESE TERMS OF SERVICE (“AGREEMENT”) DESCRIBE THE TERMS AND CONDITIONS ON WHICH GORGIAS INC. (“GORGIAS”) PROVIDES ITS CUSTOMERS (THE “CUSTOMER” or “YOU”) ACCESS TO GORGIAS’ PROPRIETARY AI ENABLED EMAIL RESPONSE SYSTEMS AND RELATED INTERFACES (THE “GORGIAS SERVICE” OR “SERVICE”).
BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY OTHERWISE USING THE SERVICE, YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH GORGIAS. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT COMPLETE THE ORDER PROCESS AND DO NOT USE THE SERVICE.
1. Provision of the Gorgias Service
1.1 Provision Generally
1.2 Grant of Subscription Rights
Subject to the terms and conditions of this Agreement, Gorgias hereby grants to Customer a limited, non-exclusive, non-transferable right to access and use the Gorgias Service (including the Gorgias Technology related thereto), solely for Customer’s business purposes during the Term.
The “Gorgias Technology” means all of Gorgias’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available or used in providing the Gorgias Service.
All rights not expressly granted to Customer are reserved by Gorgias and its licensors. There are no implied rights.
1.3 Eligibility Requirements
By entering into this Agreement, Customer represents and warrants that Customer meets the following minimum requirements (“Eligibility Requirements”): (a) Customer is at least 18 years old and has the legal capacity to be bound by this Agreement; (b) Customer has the necessary rights and authority to enter into and perform the obligations required of Customer under this Agreement including entering into this Agreement on behalf of and binding a third-party, if so applicable; (c) All information which Customer provides, including but not limited to information provided during registration, information about Customer and any third -party business or customers, and all relevant payment information, is within Customer’s right to use and provide us, and is and will remain accurate, complete and current; (d) Customer is in compliance with all applicable laws, including but not limited to all applicable laws and regulations pertaining to data privacy; (e) To the best of Customer’s knowledge, none of the Customer Data (as defined herein) will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic or obscene content or material; and (f) Customer will provide Gorgias with any information, records, or materials that we request to verify Customer’s compliance with the eligibility requirements set forth in this Agreement.
Customer shall not (and shall not authorize any third party to): (a) use the Gorgias Service to develop or market any product, software or service that is functionally similar to or derivative of the Gorgias Service, or for any other purpose not expressly permitted herein; (b) access or use the Gorgias Service except as envisioned by the Gorgias Service in its normal operation or as specified in any documentation or instructions provided by Gorgias with regard to the use of the Service (the “Documentation”); (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Gorgias Service, directly or indirectly, to any third party; or (d) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Gorgias Service. Customer shall keep all passwords and API keys provided to it safe and secure, and shall be responsible for all use of the Gorgias Service using passwords or API keys issued to Customer. Customer shall notify Gorgias immediately of any actual or reasonably suspected unauthorized use of its passwords or API keys for the Gorgias Service. Without limiting any of its other rights or remedies, Gorgias reserves the right to suspend access to the Gorgias Service if Gorgias reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement (in which case, it shall endeavor to provide Customer prompt written notice of such suspension and an opportunity to cure, as practical and reasonable under the circumstances).
1.5 Customer Cooperation
Customer shall reasonably cooperate with Gorgias as reasonably necessary for Gorgias to provide the Gorgias Service in accordance with this Agreement, which may include providing Gorgias reasonably requested information.
1.6 Supplemental Terms
Certain Services may require Customer’s or its representatives’ agreement to Supplemental Terms before Customer can use those additional services, and/or Customer and Gorgias may enter into Supplemental Terms for specific Services on a case by case basis. In either case, those Supplemental Terms will be incorporated into this Agreement and takes precedence if there is conflict with respect to the applicable Services. Supplemental Terms will only be binding if expressly agreed to by Customer.
Customer acknowledges and agrees that as between Gorgias and Customer, all right, title and interest in and to the Gorgias Service (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information other than Customer Data) and other content on or made available through the Gorgias Service, other than Customer Data), the Gorgias Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Gorgias or its licensors, and this Agreement in no way conveys any right, title or interest in the Gorgias Service or the Gorgias Technology other than a limited right to access and use the Gorgias Service in accordance with this Agreement.
Gorgias acknowledges and agrees that as between Customer and Gorgias, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions herein.
No right or license is granted hereunder to either Party under any trademarks, service marks, trade names or logos. Customer shall not remove any Gorgias trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Gorgias Service.
3. Fees; Payments; Taxes
In consideration of the provision of the Gorgias Services, Customer shall pay Gorgias the monthly and other applicable fees pursuant to the fee schedule and Gorgias subscription plan chosen by Customer on https://gorgias.io and make such payment in accordance with the instructions and schedule associated with that subscription plan, unless otherwise agreed.
Gorgias reserves the right to increase its fees following the Initial Term or Renewal term (as defined below) for any Renewal Term on 60 days’ prior notice. If Customer objects to the fee increase, Customer may terminate the Gorgias Service by written notice following the Initial Term or applicable Renewal Term. If Customer does not exercise its right of termination during such period, Customer will be deemed to have accepted the increased fees.
All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Gorgias Service, or Customer’s access to the Gorgias Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Gorgias’s income), which may be invoiced by Gorgias from time-to-time.
3.4 Late Payments and Disputed Fees
Customer shall pay interest on all late payments for amounts not subject to a timely good faith dispute at the lesser of (a) 1% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Gorgias for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred in collecting any unpaid undisputed amounts owed by Customer hereunder. If Customer reasonably disputes any amount invoiced, it shall promptly inform Gorgias of such dispute and may withhold payment for the amount subject to such dispute.
4. Term; Termination
4.1 Term, Automatic Renewal
The term of this Agreement shall commence upon Customer’s selection of a subscription plan to the Gorgias Service, and shall continue for the period of the initial subscription period selected by the Customer (the “Initial Term”), unless earlier terminated in accordance with this Agreement. In the event that the Agreement is not terminated, it shall continue to automatically renew for the length of the Initial Term (each a “Renewal Term”). The Initial Term and any Renewal Term is referred to herein as a “Subscription Term” or the “Term.”
Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and does not cure such breach within 30 days after written notice thereof.
In addition, either Party may terminate for convenience upon 30 days’ written notice. However, if Customer terminates for its convenience and its subscription plan’s pricing includes a discounted fee for a minimum Term, then Customer may not terminate for its convenience unless it pays Gorgias the difference between the discounted and standard fee for the periods in which it had access to or use of the Services.
4.3 Effects of Termination; Survival
Upon any termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate and Gorgias shall no longer provide access to the Gorgias Service to Customer, (b) Customer shall cease using the Gorgias Service, and (c) Gorgias shall make available or destroy (at Customer’s election) all Customer Data in Gorgias’ possession or control. Any obligations that have accrued prior to termination shall survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive termination of this Agreement: Sections 2 through 10.
5. Customer Data
5.1 Data Generally
All data and information that the Customer inputs into the Gorgias Service, is provided by third party integrations through Customer’s use of the Gorgias Service, or is collected, generated, or obtained by Gorgias or on its behalf in connection with the Customer’s use of the Gorgias Service (including from end users) (each of the above, the “Customer Data”) is stored in a private and secure fashion, and will not be used by Gorgias except as provided herein. Customer hereby grants to Gorgias a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, and display the Customer Data during the Term in connection with providing the Gorgias Service to Customer, and improving, developing and marketing the Gorgias Service or new offerings and to train and improve artificial intelligence algorithms and models (provided that Gorgias may only use anonymized and aggregated Customer Data to improve, develop and market the Gorgias Services or develop new offerings). Gorgias may analyze Customer Data, and data of other customers, to create aggregated and anonymized statistics or data that do not identify Customer or any individual, household, user, browser, or device and Gorgias may during and after the Term use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. Gorgias shall operate the Gorgias Service in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections.
Gorgias shall implement and maintain reasonable and appropriate technical and organizational measures to ensure the protection, confidentiality, and integrity of Customer Data and otherwise comply with its data protection policies and/or addendums. In the event of any actual or reasonably suspected accidental, unauthorized, or unlawful use, destruction, loss, alteration, disclosure of, or access to Customer Data (“Security Incident”), Gorgias shall: (a) provide prompt notice to Customer (no more than seventy two (72) hours) upon Gorgias’ discovery of the Security Incident; (b) use reasonable efforts and take all reasonable actions to prevent, contain, and mitigate the impact of the Security Incident; (c) collect, preserve, and document evidence as reasonably practicable concerning the discovery, cause, vulnerability, remedial actions and impact related to such Security Incident; and (d) reasonably cooperate with Customer related inquiries.
5.2 Additional Customer Responsibilities
Customer is solely responsible for all Customer Data. Gorgias does not guarantee the accuracy, integrity or quality of Customer Data. Customer shall not: (a) upload or otherwise make available to Gorgias any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to Gorgias any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to Gorgias any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Gorgias Service or servers or networks connected to the Gorgias Service; (f) upload or otherwise make available to Gorgias any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder, or constitutes similarly protected information under any applicable state, rule or regulation (g) violate any applicable law, rule or regulation, including those regarding the export of technical data, or (h) use the Gorgias Service in a manner not prescribed in the Documentation.
6. Representations and Warranties; Disclaimer
6.1 General Representations and Warranties
Each Party hereby represents and warrants to the other Party that: (a) if such Party is a corporation, company or other entity (as applicable), such entity is duly organized, validly existing and in good standing in its jurisdiction of organization; (b) such Party’s execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part or, if such Party is an individual, such Party has legal capacity to enter into this Agreement; (c) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such Party enforceable against such Party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; (d) its execution, delivery and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such Party is subject; and (e) it has all rights and permissions necessary to fully perform its obligations hereunder.
6.2 Gorgias Warranty
Gorgias further represents and warrants that (a) it will provide the Gorgias Service in a competent and workmanlike manner consistent with industry standards; and (b) it owns or otherwise has sufficient rights (including without limitation all intellectual property rights thereto) to grant the licenses to Customer under this Agreement. Gorgias does not warrant that it will be able to correct all reported defects or that use of the Gorgias Service will be uninterrupted or error free. Gorgias makes no warranty regarding features or services provided by any third parties. Gorgias retains the right to modify its Services and the Gorgias Technology. In the event of a Gorgias modification that materially reduces the Services, Customer may terminate on 30 days’ notice and receive a refund for pre-paid fees for Services not provided after that termination. Customer’s sole remedy for Gorgias’s breach of the warranty in this paragraph shall be that Gorgias shall remedy the applicable error, or if Gorgias is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Gorgias Service for the Subscription Term during which the breach of warranty occurred.