The Gap Terms of Service

Last updated 10 December 2024

Welcome to The Gap!

We're thrilled to have you join our community. Before you proceed, it's crucial that you carefully review the following terms and conditions. They outline both your rights and responsibilities, as well as ours, concerning the use of our platform and related services. By becoming a member, you agree to abide by these terms and conditions.

We recommend storing a copy of these terms for your records, as we won't be storing them specifically for you.

If you have any questions or need assistance regarding our services, don't hesitate to reach out. You can contact us via the contact form on our website www.thegaphq.com, or by sending us a letter to The Gap 2014 Limited, PO Box 10453 Bayfair, Mount Maunganui 3152.  We're here to help!

Agreement

1. Interpretation

1.1 Definitions in this Agreement, unless the context otherwise requires:

‘Acceptable Use Policy’

Means the The Gap’s acceptable use policy available at www.thegaphq.com/acceptable-use-policy and annexed as Schedule 1.

‘Agreement’

Means the agreement between The Gap and the Member for the provision of the Services, incorporating these terms and conditions (including the Schedules), and the Privacy Policy, and the Data Processing Addendum (if any), and the Statement of Services (if any), and any additional or supplemental terms and conditions agreed between The Gap and the Member in writing from time to time.

‘Beta Feedback’

has the meaning given to that term in clause 11.3.

‘Beta Product’

has the meaning given to that term in clause 11.1.

‘Business Day’

Means any day other than a Saturday or Sunday or a New Zealand statutory public holiday.

‘Business Hours’

Means 8.30am to 5.00pm New Zealand Time on a Business Day.

'Client User'

Means any person, client, or third party that the Member seeks to gather information from, or deliver information to by using the Services.

‘Commencement Date’

Means either:

the date the Member creates their account on the Platform; Or

the date the Member accepts an invitation from The Gap to activate their account on the Platform;

whichever is earlier.

‘Confidential Information’

Includes all information exchanged between The Gap and the Member, whether in writing, electronically or verbally, or uploaded into the Platform, including business data, client information, and the Services, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party to the Agreement.

‘Force Majeure’

Means an event or occurrence:

1. Which is beyond the reasonable control of either party; and
2. Which a party could not have reasonably foreseen and taken reasonable measures to prevent.

But will not include any form of labour dispute or delay caused by contractual or labour relations between the parties and any of their employees, agents, sub-contractors or suppliers, or inability to perform due to lack of available funds.

'Free Trial'

Means a Subscription Plan under which no Subscription Fee is applied for Services in accordance with clause 6.

‘Intellectual Property’

Means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world, whether or not registered.

‘Intended Purpose’

Means the intended purpose of the Services (or any part thereof); being the education and facilitation of marketing, selling and delivering business advisory services.

‘Member’, ‘you’ or ‘your’

Means the person and/or entity identified as the owner of a registered account on the Platform.

‘Member Materials’

Means all works and materials (including User Content)

1. created on, uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Member or by any person (including a Client User) or application or automated system using the Member's account; and
2. otherwise provided by the Member to The Gap in connection with the Agreement; but
3. excludes any works and materials that are modified, altered or adapted by the Member, to the extent that it is similar to the published Gap Services.

‍‘Personal Data’

Means any information or data about an identifiable natural person.

‘Platform’

Means the software platform known as ‘The Gap Portal’, ‘The Gap’ and/or ‘Gap App’ that facilitates the marketing, selling, and delivery of business advisory services, is owned and operated by The Gap, and that will be made available to the Member as a service via the internet under the Agreement.

'Pricing Page'

Means the pricing page of The Gap’s website at www.thegaphq.com/product#pricing

'Privacy Policy

Means The Gap’s privacy policy, available at www.thegaphq.com/privacy

‘Services’

Means all services we provide to the Member under this Agreement, including access to the Platform via the internet, educational resources, and the ongoing Enhancement and Support Services as specified in Clause 8 (to the extent they are included in your Subscription Plan), educational webinars, masterclasses and implementation programmes.

‘Subscription’

Means the Subscription granted to the Member pursuant to Clause 3.

‘Subscription Fee’

Means the fee payable for the Subscription Plan as specified on our Pricing Page. Where The Gap and the Member have agreed an alternative fee, that alternative fee shall override the fee specified on the Pricing Page.

'Subscription Plan'

Means to the specific set of services, features, usage limits, and associated Subscription Fee selected by the Member or assigned to their account. Subscription Plans may vary in terms of scope, duration, pricing, and additional benefits, as detailed on the Pricing Page or as agreed with The Gap in writing.

‘Team User’

Means any employee, director, principal contractor or consultant, and all working owners, who use the Services.

‘Term’

Means the Initial Term and any Extended Terms as specified in Clause 4.

‘Upgrades’

Means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.

1.2. Interpretation in this Agreement, unless the context otherwise requires:

1. The word ‘person’ includes a natural person and anybody or entity whether incorporated or not;
2. ‘Including’ and similar words do not imply any limitation;
3. A reference to the Member or The Gap is also a reference to that party’s permitted assigns or successors;
4. References in this Agreement to a party or parties are references to the parties to this Agreement;
5. References in this Agreement to sections and clauses are references to sections and clauses in this Agreement;
6. All amounts are plus GST (if any); and
7. All amounts are in New Zealand Dollars, unless expressly stated otherwise.

2. Changes

2.1. The Gap can amend the Agreement at any time by providing the Member at least 30 days’ prior notice of the amendments by sending the Member an email or other electronic notification. The Member’s continued use after the expiry of that notice period means that the Member agrees to the changed Agreement.

2.2. If the Member is within their Initial Term when notified of an amendment to this Agreement and does not agree to the amended terms, they must notify The Gap in writing within 30 days, stating their disagreement. In such a case, the existing terms of this Agreement will remain in effect for the remainder of the Initial Term. Once the Initial Term expires, the amended version of this Agreement will apply to any Extended Term.

3. Grant of Subscription

3.1. Services Subscription:

Subject to the terms and conditions of this Agreement, The Gap grants to the Member, and the Member accepts, a non-transferable, non-exclusive Subscription to use the Services for the Intended Purposes. The Subscription provides the Member with access to the Services, while the Member is paying the Subscription Fee.

3.2. Subscription limitations:

The Member may use the Services to support the provision of services to its own clients, but may not sub-licence, sell or otherwise transfer or dispose of the Services in whole or in part, or otherwise use or deal with the Services in any way that could diminish The Gap’s Intellectual Property rights in the Services.

4. Term

4.1. Term:

The Term of this Agreement shall comprise the Initial Term under Clause 4.2, together with any Extended Terms under Clause 4.3, unless this Agreement is terminated under Clause 21.

4.2. Initial term

This Agreement shall commence on the Commencement Date and shall continue for a period of 12 months from the date the Member requests to upgrade to a paid Subscription Plan (‘Initial Term’).

4.3. Renewal and continuation:

After the Initial Term, this Agreement will automatically continue on a month-to-month basis (‘Extended Term’) unless either party provides notice of termination in accordance with this Agreement.

5. Free Trial

5.1. Free Trial

The Gap will provide limited access to the Services during the Free Trial.

5.2. Free Trial period:

The Free Trial period shall commence on the Commencement Date and shall continue for a period of 30 days.

5.3. Expiry of Free Trial:

Access to The Services will be restricted after the expiry of the Free Trial. To continue to use the Services after the expiry of the Free Trial period, the Member must upgrade their account to a paid Subscription Plan.

5.4. Upgrade account:

The Member may request to upgrade their account at any time during the Free Trial period to access the full Services.

5.5. Right to disable Free Trial:

The Gap reserves the right to disable a Free Trial at its discretion.

1. If The Gap believes a trialist has provided inaccurate personal details to commence the Free Trial, The Gap reserves the right to disable access to the Platform until the trialist has been contacted and their identity and contact information verified.
2. If a trialist has previously been a Gap member, The Gap may disable the Free Trial and recommend a demo.
3. If The Gap believes a trialist has commenced the trial on a not in good faith basis, access to the Free Trial will be immediately revoked.

6. The Services

6.1. The Gap will provide the Member with access to the Platform, subject to the Member (including its Team Users and Client Users):

1. complying at all times with the terms of this Agreement and the Acceptable Use Policy;
2. limiting its use of the Services to the Intended Purpose;
3. and complying with the relevant usage limits and/or restrictions specified in the Member's current Subscription Plan.

6.2. The Member must ensure that all users of the Platform that are connected to the Member’s account comply with the terms of the Acceptable Use Policy. For the avoidance of doubt, this includes both Team Users and Client Users.

6.3. If the Member's use of the Services exceeds any applicable usage limits and/or restrictions under the Member's current Subscription Plan, the Gap may contact the Member to arrange an upgrade to a new Subscription Plan and/or impose technical limitations or restrictions on the Member's use of the Services to prevent a reoccurrence of such excess usage.

6.4. The Member must ensure that all usernames and passwords required to access the Services are kept secure and confidential. The Platform has minimum password standards to enhance security, however, it is the Member’s responsibility to ensure passwords are very strong and not easily guessed.

6.5. The Member acknowledges that it is solely responsible for the use, management and control of the Services licensed to the Member under the Agreement, and must:

1. Ensure that the Services is used by competent, trained employees of the Member or of contractors or consultants to the Member, or by persons under the supervision of such persons;
2. Use best efforts to consider incorporating new releases, versions and updates provided by The Gap as part of the Enhancement and Support Services;
3. Co-operate with The Gap personnel in respect of any reasonable request made by The Gap for the purposes of The Gap fulfilling its obligations under this Agreement.

6.6. To support the provision of services to its own clients, the Member may copy, modify, alter or adapt the Services, by creating its own template versions in the Platform,  but in doing so must always ensure that The Gap’s Intellectual Property rights subsisting in the Services are fully protected.

6.7. As a condition of this Agreement, when accessing and using the Services, the Member, its Team Users and its Client Users must not:

1. Attempt to undermine the security or integrity of The Gap’s computing systems or networks, or where the Services are hosted by a third party, that third party’s computing systems and networks;
2. Use, or misuse, the Services in any way which may impair the functionality of the Services or The Platform, or other systems used to deliver the Services or impair the ability of any other user to use the Services.
3. Attempt to gain unauthorised access to any materials other than those to which the Member has been given express permission to access or to the computer system on which the Services are hosted;
4. Transmit, or input into the Services, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or data in violation of any law (including Member Materials or other material protected by copyright or trade secrets which the Member does not have the right to use); and
5. Attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any part of the Services or to operate the Services except as is strictly necessary to use it for normal operation.

6.8. To realise the full value of the Services, your participation and effort are needed. Responsibilities may include attending regular meetings with your Member Success Specialist, attending training sessions or accessing self-serve training materials, and setting goals and actions for the use of the Services. We recommend appointing a Gap Champion to oversee the successful implementation in the business.

7. Enhancement and Support Services

7.1. The Gap will provide Enhancement and Support Services during the Term (to the extent they are included in the Member’s Subscription Plan).

7.2. Enhancement and Support Services include:

1. The electronic delivery to the Member, via The Platform, of new content releases, versions and updates of the Services as they become available;
2. The provision of unlimited off-site support, during Business Hours, for the Services in relation to diagnosis and correction of any errors, omissions or other defects in relation to the Services in the form supplied by The Gap;
3. The provision of online and phone-based support (where included in the Subscription Plan).
4. The provision of training and support to encourage best practice use of the Services (where included in the Subscription Plan).

7.3. Technical support:

In the case of technical problems, the Member must make all reasonable efforts to investigate and diagnose problems prior to contacting The Gap. If technical help is still required, please check the help options available under the question mark icon in The Platform. If further technical support is needed, contact support@thegaphq.com for assistance.

7.4. Access by The Gap team:

In the event that it is necessary for a member of The Gap team to log into the Member’s account in The Platform, in order to investigate and problem-solve technical issues, The Gap will seek the Member’s express permission before doing so. The Gap support user will be archived from the Member’s account when the issue has been resolved.

7.5. Enhancement and support services specifically excluded are:

1. Diagnosis and correction of any errors, omissions or other defects in relation to the Services that are, in The Gap’s reasonable opinion, caused by:
   i) Modification, alteration or adaptation of the Services by the Member;
   ii) The Member’s hardware and software systems;
   iii) Use of the Services in a manner contrary to the Intended Purposes, or any specifications or advice provided by The Gap;
   iv) The Member’s failure to utilise new releases, versions and updates provided by The Gap on a timely basis;
   v) Use of the Services by the Member’s employees who are not suitably qualified or trained to use the Services;
   vi) Any unauthorised use of the Services; or
   vii) Any failure of the Member to comply with the terms of this Agreement.

7.6. Suspension of Enhancement and Support Services:

The Gap may (without prejudice to its other rights and remedies) suspend delivery of the Enhancement and Support Services during any period in which the Member is in arrears for payment of any Subscription Fees and/or any other amounts payable under this Agreement.

8. Upgrades and Maintenance

8.1. During the Term the Gap may apply Upgrades to the Platform. Such Upgrades may result in changes the appearance and/or functionality of the Platform.

8.2. The Gap may from time to time suspend access to the Platform in order to carry out scheduled maintenance or Upgrades.

8.3. The Gap will endeavour to give to the Member advance notice of scheduled maintenance affecting access to the Platform, including details of the expected Platform downtime. The Member acknowledges that advance notice from the Gap may not always be possible in the case of urgent maintenance.

9. Service availability

9.1. The Gap aims to provide uninterrupted access to its Services; however, the Member acknowledges that occasional downtime or disruptions may occur due to maintenance, updates, or unforeseen circumstances.

9.2. In the event of unexpected downtime, The Gap will:

a. Promptly investigate and address the issue;

b. Communicate updates to Members regarding the status of the outage and expected resolution time, where possible, via the Platform; The Gap’s website; or email.

9.3. The Gap is not liable for any direct or indirect damages or losses arising from service interruptions, except where required by law.

9.4. This clause does not apply to disruptions caused by factors outside The Gap’s control, including but not limited to force majeure events, third-party service outages, or Member misuse of the Services.

10. Usage limitations

10.1. Use of the Services may be subject to limitations. Any such limitations will be notified via:

1. The Platform;
2. The Gap’s website; or
3. Email..

10.2. At all times the general use of the Services shall be limited to the Intended Purpose.

11. Beta Products

11.1. From time to time, the Gap may make available to the Member for evaluation and feedback purposes a new version of the Platform, or any new features, functionality, configurations or integrations on or for the Platform, which typically will be identified by The Gap as being a “beta”, “preview”, “early access”, “Gap Labs”, "test" or “evaluation” (or similar) version or release (“Beta Product”). Unless expressly agreed otherwise in writing, the Member will not be required to use a Beta Product and will not be required to pay any additional Subscription Fees to use a Beta Product.

11.2. If the Member elects to use a Beta Product, the Member acknowledges and agrees that:

1. The Gap may at any time at its discretion change or modify the Beta Product;
2. The Gap has no obligation to continue to provide or commercially release the Beta Product following completion of the relevant evaluation and feedback;
3. The Gap may at any time at its discretion suspend or discontinue (temporarily or permanently) access to the Beta Product; and
4. the Beta Product is made available for the purpose of evaluation and obtaining user feedback and may not have been fully tested. For that reason the Beta Product may not be as reliable or available as Services provided under a commercially available Subscription Plan and may be subject to defects, errors and bugs;
5. the Beta Product is provided on an 'as-is' basis as part of a beta testing process. The Gap makes no warranties, express or implied, regarding the performance, functionality, or availability of the Beta Product. The Gap shall not be liable for any damages, losses, or costs arising from the use or inability to use the Beta Product, including but not limited to data loss, downtime, or other technical issues. Use of the Beta Product is at your own risk.

11.3. If the Member elects to use a Beta Product, the Member will provide, and cause its Team Users to provide, feedback regarding the Beta Product ("Beta Feedback") as and when reasonably requested by the Gap. The Gap may at its discretion use any and all Beta Feedback without restriction, including by incorporating the Beta Feedback in changes or modifications to Beta Product.

11.4. The provisions of this Clause 11 apply subject to anything to the contrary agreed by the Gap and the Member in writing in relation to a Beta Product.

12. Communication conditions

12.1. As a condition to this Agreement, if the Member uses any communication tools available through The Platform, the Member agrees only to use such communication tools for lawful and legitimate purposes. The Member must not use any such communication tool for posting or disseminating any material unrelated to the Intended Purpose, including (but not limited to): offers of goods or services for sale, unsolicited commercial email, files that may damage any other person’s computing devices or software, content that may be offensive to any of our other users, or material in violation of any law (including material that is protected by copyright or trade secrets which the Member does not have the right to use).

12.2. When the Member makes any communication in The Platform, the Member represents that it is permitted to make such communication. The Gap is under no obligation to ensure that the communications on The Platform are legitimate or that they are related only to the Intended Purpose. As with any other web-based forum, the Member must exercise caution when using the communication tools available in The Platform. However, The Gap does reserve the right to remove any communication at any time in its sole discretion.

13. Additional services

13.1. If requested by the Member, The Gap may provide additional services outside the scope of this Agreement, or recommend the services of other providers for services outside the scope of this Agreement. The scope of such additional services, the fees, and payment terms shall be agreed in writing between the parties at the time.

14. Payments, Default and Recovery

14.1. The Member will pay the Subscription Fee in accordance with the terms of this Agreement.

14.2. The first Subscription Fee is payable on the later of:

1. Commencement Date;
2. The date the Member requests to upgrade to a paid Subscription Plan.

14.3. The Gap may review the Subscription Fee at any time after the expiry of the Initial Term under clause 4 and shall give the Member written notice of the outcome of any such review. Any change to the Subscription Fee as a result of the review will take effect 30 days after receipt of such notice by the Member in accordance with clause 22.

14.4 If the Member disputes the whole or any portion of any invoice submitted to it by The Gap, the Member agrees to:

1. Notify The Gap within 10 Business Days of receipt of the invoice of the dispute and the reasons for it; and
2. Pay that portion of the invoiced amount (if any) that is not in dispute by the due date.

14.5. Suspension of access to the Services if fees overdue:

The Gap may (without prejudice to its other rights and remedies) suspend the Member’s access to the Services and The Platform during any period in which the Member is in arrears for payment of the Subscription Fees and/or any amounts payable under this Agreement.

14.6. Default interest:

If any amount due and payable under this Agreement remains unpaid after the due date for payment, The Gap may (without prejudice to its other rights and remedies) charge default interest, from the due date for payment until payment in full of the overdue amount, on the total amount payable to The Gap under the terms of this Agreement at the rate of 1.2% per month.

14.7. Debt recovery:

If any amount due and payable under this Agreement remains unpaid more than 45 days after the due date for payment, The Gap may (without prejudice to its other rights and remedies) may engage third-party collection agencies or take legal action to recover the outstanding amounts. The Member will be responsible for any reasonable costs incurred in the debt recovery process, including but not limited to legal fees, collection agency charges, and court costs.

15. Warranties and liability limitations

15.1. Business purposes and the Member’s own investigations:

The Member acknowledges that it enters into this Agreement for business purposes; that it has undertaken its own investigations into the Services; and that it enters into this Agreement in reliance on those investigations and not on the basis of any warranty or representation by The Gap (except for any warranty or representation expressly set out in this Agreement).

15.2. No warranty:

The Services are provided on an “as is” and “as available” basis, without any guarantees, conditions, or warranties of any kind, except as expressly set out in this Agreement. The Member acknowledges that access to and use of the Services is at their own risk and that The Gap does not guarantee that the Services will be uninterrupted, error-free, or fit for any particular purpose.

15.3. Remedy of defects:

If, during the term, the Member discovers any error, omission or other defect in relation to the Services, then The Gap shall, as part of the Enhancement and Support Services, use its best endeavours to diagnose and remedy such error, omission or other defect.

15.4. No breach of third party rights:

The Gap warrants that, to the best of its knowledge, no part of the Services or the granting by The Gap of rights pursuant to this Agreement, shall breach the Intellectual Property rights of any third party, provided that:

1. The Member notifies The Gap in writing as soon as practicable of any actual, suspected or alleged infringement (‘Claim’) and provides all reasonable assistance to perform its obligations under Clause 15.4;
2. The Gap has sole control of the defence or settlement of any Claim;
3. The Member has not, through any admission, statement or conduct, prejudiced The Gap’s defence of any Claim;
4. The Claim does not arise from any modification, alteration or adaptation of the Services by the Member; and
5. The Claim does not result from any failure by the Member to perform any of the Member’s obligations under this Agreement.

15.5. Warranties excluded and liability limited:

1. Except as expressly set out in this Agreement, all warranties, conditions, and guarantees implied by customary practice, at law, or under statute are excluded to the extent permitted by law. The parties agree that the Consumer Guarantees Act 1993 does not apply to this Agreement, as the Services are acquired for business purposes.
2. The Gap shall not be responsible for any cost, loss, damage, or claim arising directly or indirectly in connection with this Agreement or the Services (whether in contract, tort, including negligence, statute, or otherwise), except for damages suffered by the Member as a direct result of The Gap breaching the terms of this Agreement.
3. In no event shall the total aggregate liability of The Gap under this Agreement exceed the total Subscription Fees paid by the Member for the Services in the 12 months immediately preceding the event giving rise to the claim.
4. The Gap shall not be liable for any:
   i Consequential, indirect, or special damages;
   ii Loss of profits, revenue, data, or business opportunities;
   iii Punitive or exemplary damages.
5. This clause 15.5 shall prevail over all other clauses in this Agreement to the extent of any inconsistency.

15.6. The Member is solely responsible for ensuring compliance with all applicable accounting, tax, privacy, and other laws. This includes verifying that the storage of and access to Member Materials and Personal Data through the Services and the Platform complies with all laws applicable to the Member, including any requirements for record retention.

16. Intellectual Property

16.1. Rights reserved:

The Member acknowledges that all Intellectual Property rights and proprietary rights subsisting in, or relating to, the Services (including any Service that is modified, altered or adapted by the Member, to the extent that it is substantially similar to the published Gap Services), but not including Member Materials and/or Personal Data, shall at all times remain the exclusive property of The Gap.

16.2. Member to assist:

The Member will do everything reasonably required by The Gap in order to protect The Gap’s Intellectual Property, including acknowledging The Gap’s Intellectual Property rights in appropriate documents it produces that contains The Gap’s Intellectual Property.

16.3. No use of trade names:

The Member shall not use or permit to be used any of The Gap’s trademarks or trade names except with the prior written consent of The Gap.

16.4. Employee termination:

Where a Team User ceases to be employed by, or contracted to, the Member, it is the Member’s responsibility to ensure the protection of The Gap’s Intellectual Property rights and that the Team User’s access to the Services is revoked upon the termination of the relationship.

16.5. Upon termination:

Upon expiry or termination of this Agreement for any reason, Clauses 21.4 (b), (c) and (d) shall apply in relation to The Gap’s Intellectual Property.

17. Data Use and Privacy

17.1. Ownership of Data:

Title to, and all Intellectual Property rights in, the Member Materials remain the Member’s property. However, access to the Member Materials via the Services may be temporarily restricted if the Member fails to pay the Subscription Fee when due, subject to the Member’s rights to access and export their personal data under applicable data protection laws, including GDPR.

17.2. Licence to The Gap

The Member grants The Gap a limited, non-exclusive licence to process, copy, transmit, store, and back up Member Materials, including Personal Data, solely for the purposes of:

1. Enabling the Member to access and use the Services;
2. Providing, maintaining, and improving the Services as outlined in this Agreement; and
3. Complying with legal and regulatory obligations.

17.3. Back-up of Data:

The Gap follows industry-recognised best practice policies and procedures to prevent data loss, including implementing a regular and robust back-up regime. While The Gap takes reasonable steps to protect Member Materials and other data, it does not guarantee that there will be no loss of data.

17.4. Data breach notification:

Where we think there has been unauthorised access to Personal Data, we will notify the Member, including details of the potential data breach. Depending on the nature of the unauthorised access, the Member may be required to assess whether the unauthorised access must be reported to a client and/or a relevant authority.

17.5. Security safeguards:

The Gap has invested in technical, physical and administrative safeguards to do its part to help keep the Member’s data safe and secure. While The Gap has taken steps to help protect the Member’s data, no method of electronic storage is completely secure and The Gap cannot guarantee absolute security. The Gap will notify the Member if there appears to be unauthorised access to the Member’s account and The Gap may also restrict access to certain parts of the Services until the Member verifies that access was by an authorised user.

17.6. Privacy Policy:

The Gap maintains a Privacy Policy that sets out the parties’ obligations in respect of Personal Data. The Member is required to read that policy at www.thegaphq.com/privacy. The Member will be taken to have accepted that policy when it accepts this Agreement.

17.7. Personal Data of others controlled by you:

Depending on the Member’s location or the location of the Member’s Client Users, the terms of our Data Processing Addendum (“DPA”) may apply to the Personal Data of individuals (such as The Member’s Client Users, client contacts, and Team Users) that the Member, a Team User or Client User input or submit into The Platform.

1. Applicability:
   i)  If the Member or The Member’s Client Users are located in the EU, UK, or other regions where applicable data protection laws (e.g., GDPR) require it, the DPA will apply.
   ii)  The DPA is incorporated into this Agreement by reference and can be reviewed at www.thegaphq.com/dpa.
   iii)  For users located outside the EU and UK, the DPA will not apply unless required by applicable data protection laws in the Member’s region.
2. Your Obligations
   i) By accepting this Agreement, the Member confirms that it will comply with the DPA if applicable to the Member or the Member’s Client Users.
   ii) The Member is responsible for ensuring compliance with all applicable data protection laws, including obtaining any necessary consents for the processing of Personal Data within The Platform.
3. Our Obligations:
   The Gap will comply with its obligations under the DPA and applicable data protection laws, including GDPR, where required.

18. Confidentiality

18.1. Confidential information:

Each party acknowledges and agrees that all Confidential Information which is disclosed to, prepared, made available or otherwise received by it, or on its behalf by any advisor or agent, as a result of performance of this Agreement constitutes commercially sensitive and valuable information and will be held by the receiving party in the strictest confidence.

18.2. Non-disclosure:

Each party agrees that it will not directly or indirectly disclose, nor permit the disclosure by its directors, employees, agents and advisors (if any) of, any of the other party’s Confidential Information whether verbally or in writing to any person other than permitted pursuant to this Agreement or with the prior written consent of that other party. Each party’s Confidential Information will at all times remain that party’s exclusive property. However, disclosures required by law or necessary for the performance of the Services (e.g., to authorised third-party service providers bound by confidentiality obligations) are permitted.

18.3. Use and Protection:

Each party acknowledges that the Confidential Information is commercially sensitive and valuable and will hold it in strictest confidence. Each party agrees to use Confidential Information solely for the purpose of performing its obligations under this Agreement and to employ commercially reasonable measures to safeguard the information against unauthorised access or disclosure.

18.4. Indemnification:

In consideration of one party disclosing Confidential Information to the other party, the receiving party agrees to indemnify and hold harmless the disclosing party against all losses, damages, costs, or expenses incurred as a result of any unauthorised disclosure or use of the Confidential Information by the receiving party.

19. Force Majeure

19.1. Where The Gap is unable, wholly or in part, by reason of a Force Majeure event, to carry out any obligation under this agreement and:

1. Gives the Member immediate written notice of the nature and expected duration of, and the obligation affected by, the Force Majeure event; and
2. Uses all reasonable endeavours to:
   i) Mitigate the effects of the Force Majeure event on The Gap’s obligations under this Agreement; and
   ii) Perform The Gap’s obligations under this Agreement despite the Force Majeure event;

Then that obligation is suspended so far as it is affected by the Force Majeure event during its continuance.

20. Assignment

20.1. Limitations of Assignment by Member:

This Subscription is personal to the Member. The Member shall not sell, transfer, subcontract, declare itself trustee of, or otherwise directly or indirectly transfer any interest in, this Agreement except with the prior written consent of The Gap.

20.2. Assignment by The Gap:

The Gap shall be entitled to assign, transfer, subcontract, or otherwise directly or indirectly transfer its interest in this Agreement to a third party.

21. Termination

21.1. Termination by the Member:

1. The Member may choose to terminate this Agreement at any time after the expiry of the Initial Term by providing 30 days’ written notice in advance.
2. The Member will be liable to pay any Subscription Fee which falls due during the 30 day notice period, up to and including the day of termination.

21.2. Termination by The Gap:

1. The Gap may choose to terminate this Agreement at any time by providing the Member with 30 days’ written notice in advance.
2. The Gap may terminate this Agreement immediately on written notice to the Member if the Member is in default as specified in Clause 21.3.

21.3. Default events:

The Member shall be in default of this Agreement where:

1. It breaches, or fails to properly or promptly perform, any of its obligations under this Agreement, and fails to remedy that failure within 30 Days after receiving written notice (inclusive of the date of receipt) from The Gap requiring the failure to be remedied; or
2. It breaches a material obligation under this Agreement which is incapable of remedy; or
3. It assigns, transfers or otherwise disposes of any right, interest, obligation, or liability in contravention of this Agreement.

21.4. Termination:

Upon termination of this Agreement for any reason, the Member shall:

1. Pay all outstanding moneys in accordance with this Agreement.
2. Uninstall, return to The Gap, or destroy all Services and other Intellectual Property belonging to The Gap that has been saved onto desktops, laptops, devices, servers and other electronic storage systems and applications, including those belonging to the Member’s employees, Team Users, and/or Client Users;
3. Not make any further use of the Services or The Gap’s Intellectual Property, including to the extent that any Intellectual Property resides in modifications, alterations or adaptations made by the Member to the Services, (but only to the extent that any Services that is modified, altered or adapted is substantially similar to the published Gap Services), without prior consent from The Gap.
4. If requested by The Gap:
   i) Provide The Gap with a written and signed confirmation that the Member has complied fully with clauses 21.4(b) and (c);
   ii) Provide The Gap or its nominated agent access to its premises in order to verify compliance with clauses 21.4(b) and (c).

21.5. Upon Termination:

1. If the Agreement is terminated, the Member will be provided Platform access for a period of up to 30 days, to enable the Member to retrieve Member Materials. The Gap has no obligation to maintain the Member Materials or any such modified, altered or adapted Services after that period. Neither party will be liable for any damages resulting from termination of this Agreement;
2. Notwithstanding clause 21.4 (b), The Member shall be permitted to retain possession of Services that contains client data, for document and risk management purposes only, and shall not be permitted to utilise such Services to provide services to its clients.

21.6. No refunds:

No refund is due to you if the Agreement is terminated by the Member or The Gap in accordance with these terms.

21.7. Survival:

The provisions of this Agreement that are intended to continue beyond termination shall survive termination and continue in force including the following provisions of this Agreement: Clauses 14.1, 14.6, 14.7 (Payments, Default and Debt Recovery), 15 (Warranties and Liability limitations), 16 (Intellectual Property), 17 (Data use and Privacy), 18 (Confidentiality) and this Clause 21 (Termination).

22. Notices

22.1. Method of Notice:

All notices, demands, or other communications required or permitted to be given under this Agreement must be in writing and will be deemed to have been duly given:

1. when delivered personally;
2. when sent by electronic mail (with receipt confirmed);
3. three (3) business days after being sent by registered or certified mail (return receipt requested, postage prepaid); or
4. one (1) business day after being sent via a recognised overnight courier service (with tracking).

22.2. Contact Information:

Notices to The Gap should be sent to the following address or email, unless otherwise notified in writing:

The Gap 2014 Limited
3/17 Banks Avenue
Mount Maunganui 3116
New Zealand

PO Box 10453
Mount Maunganui 3152
New Zealand

hello@thegaphq.com

Notices to the Member will be sent to the contact details provided during the subscription process or as updated by the Member in writing.

22.3. Unsolicited Electronic Messages Act:

The Member gives its consent for The Gap to send it electronic messages and community alerts containing commercial marketing and Services information. The Gap agrees not to disclose the Member’s email address to any other person for commercial purposes.

23. Miscellaneous

23.1. Compliance with laws:

Each party will, in performing its respective obligations under and in connection with this Agreement, comply with all relevant statutes and other laws.

23.2. Entire Agreement:

This Agreement, together with The Gap’s Acceptable Use Policy, Privacy Policy, and Data Processing Addendum (if applicable) constitutes the entire Agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of this Agreement.

23.3. Where any provision of this Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions of this Agreement and the parties must attempt to replace that severed part with a legally acceptable alternative clause that meets the parties’ objectives.

23.4. No waiver by action:

Any delay, failure, or forbearance by a party to exercise (in whole or in part) any right, power or remedy under, or connection with, this Agreement, will not operate as a waiver of such right, power or remedy.

23.5. Waiver to be in writing:

The waiver of any breach of any provision of this Agreement will not be effective unless that waiver is in writing and is signed by the party against whom that waiver is claimed. A waiver of any breach shall not be, or be deemed to be, a waiver of any other or subsequent breach.

23.6. Payments without deductions or set-off:

All payments required to be made by the Member under the terms of this Subscription shall be made without any set-off or deduction whatsoever.

23.7. Non-solicitation of employees:

During the Term, neither party shall solicit for employment any person who is employed by the other party.

23.8. New Zealand law:

This Agreement is governed by New Zealand law. New Zealand Courts have non-exclusive jurisdiction.

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