1. The Gap 2014 Ltd (‘The Gap’).
2. The Licensee.
A. The Gap is the exclusive owner of content, supporting tools, videos, and know-how for the implementation of Business Development & Advisory services by accounting and bookkeeping practices.
B. The Gap has agreed to grant the Licensee a licence to use the Product upon the terms of this Agreement.
1.1 Definitions in this Agreement, unless the context otherwise requires:
Means this Agreement and all its schedules, appendices and agreed variations.
Means any day other than a Saturday or Sunday or a New Zealand statutory public holiday.
Means 8.30am to 5.00pm New Zealand Time on a Business Day.
Means the date the Licensee’s completed membership form is received by The Gap.
Includes all information exchanged between The Gap and the Licensee, whether in writing, electronically or verbally, including the Product, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party to the Agreement.
Means any data inputted or imported by the Licensee into the Product, including the Licensee’s branding and logos.
Means an event or occurrence:
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.
Means goods and services tax payable under the Goods and Services Tax Act 1985 (New Zealand).
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.
Means the licence granted to the Licensee pursuant to Clause 2.1.
Means the person who registers to use the Product, and, where the context permits, includes any entity on whose behalf that person registers to use the Product.
‘Monthly Licence Fee’
Means the monthly fee payable as specified in our Pricing Tier List. Where The Gap and the Licensee have agreed an alternative monthly fee, that alternative monthly fee shall override the monthly fee specified in the pricing tiers.
Means any content, documents, templates, presentations, tools, videos (in hard copy or electronic format) produced by The Gap and provided to the Licensee under this Agreement, and includes the ongoing Enhancement and Support Services as specified in Clause 4.
For the purpose of determining the monthly licence fee includes any employee, accounting or Business Development contractor or consultant and all working owners, regardless of the numbers of hours worked and whether or not they will use the Product.
Means the Initial Term and any Extended Terms as specified in Clause 16.
‘The Gap Portal’
Means the Internet site at the sub-domain: portal.thegapportal.com.
1.2 Interpretation in this Agreement, unless the context otherwise requires:
2.1. Product Licence:
Subject to the terms and conditions of this Agreement, The Gap grants to the Licensee, and the Licensee accepts, a non-transferable, non-exclusive Licence to use the Product. The Licence provides the Licensee with access to the Product while the Licensee is paying the Monthly Licence Fee.
2.2. Licence limitations:
The Licensee may use the Product to support the provision of services to its own clients, but may not sub-licence, sell or otherwise transfer or dispose of the Product in whole or in part, or otherwise use or deal with the Product in any way that could diminish The Gap’s Intellectual Property rights in the Product.
3.1. Free trial:
The Gap will provide limited access to the Product during the free trial.
3.2. Free trial period:
The free trial period shall commence on the day the Licensee activates the free trial and shall continue for a period of 30 days.
3.3. Expiry of free trial:
To continue to use the Product after the expiry of the free trial period, the Licensee must upgrade their account. Access to The Gap Portal will be restricted to the User Settings page after the expiry of the free trial.
3.4. Upgrade account:
The Licensee may request to upgrade their account at any time during the free trial period to access the full Product.
3.5. Right to disable free trial:
The Gap reserves the right to disable a free trial at its discretion.
4.1. The Gap will provide Enhancement and Support Services during the Term.
4.2. Enhancement and Support Services include:
4.3. Technical support:
In the case of technical problems, the Licensee 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 Gap Portal. If further technical support is needed, contact email@example.com for assistance.
4.4. Access by The Gap team:
In the event that it is necessary for a member of The Gap team to log into the Licensee’s account in The Gap Portal in order to investigate and problem-solve technical issues, The Gap will seek the Licensee’s express permission before doing so. The Gap support user will be archived from the Licensee’s account when the issue has been resolved.
4.5. Service availability:
Whilst The Gap intends that the Product should be available 24 hours a day, seven days a week, it is possible that on occasions the Product or The Gap Portal may be unavailable to permit maintenance or other development activity to take place. If for any reason The Gap has to interrupt the Product for longer periods than we would normally expect, we will use reasonable endeavours to publish in advance details of such activity on The Gap Portal dashboard and on The Gap’s website.
4.6. Enhancement and support services specifically excluded are:
4.7. 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 Licensee is in arrears for payment of any fees payable under this Agreement.
5.1. The Gap will provide the Licensee with access to the Product.
5.2. The Gap may suspend access to the Product during any period in which the Licensee is in arrears for payment of any fees payable under this Agreement.
5.3. The Licensee must ensure that all usernames and passwords required to access the Product are kept secure and confidential. The Product has minimum password standards to enhance security, however, it is the Licensee’s responsibility to ensure passwords are very strong and not easily guessed.
5.4. The Licensee acknowledges that it is solely responsible for the use, management and control of the Product licensed to the Licensee under the Agreement, and must:
5.5. To support the provision of services to its own clients, the Licensee may copy, modify, alter or adapt the Product, but in doing so must always ensure that The Gap’s Intellectual Property rights subsisting in the Product are fully protected.
5.6. As a condition of this Agreement, when accessing and using the Product, the Licensee must not:
5.7. To realise the full value of the Product and Subscription Service, 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 Product. We recommend appointing a Gap Champion to oversee the successful implementation in the business.
6.1. Use of the Product may be subject to limitations. Any such limitations will be advised.
7.1. As a condition to this Agreement, if the Licensee uses any communication tools available through The Gap Portal, the Licensee agrees only to use such communication tools for lawful and legitimate purposes. The Licensee must not use any such communication tool for posting or disseminating any material unrelated to the use of the Product 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 Licensee does not have the right to use).
7.2. When the Licensee makes any communication in The Gap Portal, the Licensee represents that it is permitted to make such communication. The Gap is under no obligation to ensure that the communications on The Gap Portal are legitimate or that they are related only to the use of the Product. As with any other web-based forum, the Licensee must exercise caution when using the communication tools available in The Gap Portal. However, The Gap does reserve the right to remove any communication at any time in its sole discretion.
8.1. If requested by the Licensee, 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.
9.1. The Licensee will pay the Monthly Licence Fee as set out in our Pricing Tiers.
9.2. The first Monthly Licence Fee is payable on Commencement Date.
9.3. The Gap may review the Monthly Licence Fee at any time after the expiry of the Initial Term under clause 16 and shall give the Licensee written notice of the outcome of any such review. Any such review will take effect 30 days after receipt of such notice by the Licensee in accordance with clause 18.
9.4. If the Licensee disputes the whole or any portion of any invoice submitted to it by The Gap, the Licensee agrees to:
9.5. Suspension of access to the Product if fees overdue:
The Gap may (without prejudice to its other rights and remedies) suspend the Licensee’s access to the Product and The Gap Portal during any period in which the Licensee is in arrears for payment ofany fees payable under this Agreement.
9.6. 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.
9.7. 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) engage the services of a debt recovery agency, and the Licensee agrees to pay all costs incurred by The Gap in doing so (including, in particular, any commission or fees charged by such agency) in addition to the amount being recovered.
10.1. Business purposes and the Licensee’s own investigations:
The Licensee acknowledges that it enters into this Agreement for business purposes; that it has undertaken its own investigations into the Product; 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).
10.2. No warranty:
The Gap does not warrant that the Product is free of error, omission or other defect.
10.3. Remedy of defects:
If, during the term, the Licensee discovers any error, omission or other defect in relation to the Product, then The Gap shall, as part of the Enhancement and Support Services, diagnose and remedy such error, omission or other defect.
10.4. No breach of third party rights:
The Gap warrants that, to the best of its knowledge, no part of the Product or the granting by The Gap of rights pursuant to this Agreement, shall breach the Intellectual Property rights of any third party, provided that:
10.5. Warranties excluded / liability limited:
10.6. The provision of, access to, and use of, the Product is on an ‘as is, where is’ basis and at the Licensee’s own risk.
10.7. The Gap does not warrant that the use of the Product will be uninterrupted or error-free. Among other things, the operation and availability of the systems used for accessing the Product, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Product. The Gap is not in any way responsible for any such interference or prevention of the Licensee’s access or use of the Product.
10.8. It the Licensee’s sole responsibility to determine that the Product meets the needs of its business.
10.9. The Licensee remains solely responsible for complying with all applicable accounting, tax and other laws. It is the Licensee’s responsibility to check that storage of and access to your Data via the Product and The Gap Portal will comply with laws applicable to you (including any laws requiring you to retain records).
11.1. Rights reserved:
The Licensee acknowledges that all Intellectual Property rights and proprietary rights subsisting in, or relating to, the Product (including any Product that is modified, altered or adapted by the Licensee, to the extent that it is substantially similar to the published Gap Product), but not including any data, shall at all times remain the exclusive property of The Gap.
11.2. Licensee to assist:
The Licensee 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.
11.3. No use of trade names:
The Licensee 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.
11.4. Employee termination:
Where an employee of the Licensee ceases to be employed by the Licensee, it is the Licensee’s responsibility to ensure the protection of The Gap’s Intellectual Property rights and that the employee’s access to the Product is revoked upon the termination of employment.
11.5. Upon termination:
Upon expiry or termination of this Agreement for any reason, Clauses 17.4 (b), (c) and (d) shall apply in relation to The Gap’s Intellectual Property.
12.1. Ownership of Data:
Title to, and all Intellectual Property rights in, the Data remains the Licensee’s property. However, the Licensee’s access to the Data is contingent on full payment of the Monthly Subscription Fee when due. The Licensee grants The Gap a licence to use, copy, transmit, store, and back-up the Licensee’s information and Data for the purposes of enabling the Licensee to access and use the Product and for any other purposes related to the provision of services to the Licensee.
12.2. Back-up of Data:
The Gap adheres to best practice policies and procedures to prevent data loss, including a regular and best practice system and back-up regime, but does not make any guarantees that there will beno loss of Data. The Gap expressly excludes liability for any loss of Data no matter how caused.
12.3. Where we think there has been unauthorised access to personal data, we will notify the Licensee, including details of the potential data breach. Depending on the nature of the unauthorised access,the Licensee may be required to assess whether the unauthorised access must be reported to a clientand/or a relevant authority.
12.4. Security safeguards:
The Gap has invested in technical, physical and administrative safeguards to do its part to help keep the Licensee’s data safe and secure. While The Gap has taken steps to help protect the Licensee’sdata, no method of electronic storage is completely secure and The Gap cannot guarantee absolute security. The Gap will notify the Licensee if there appears to be unauthorised access to the Licensee’s account and The Gap may also restrict access to certain parts of its services until the Licensee verifies that access was by an authorised user.
13.1. 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.
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.
In consideration of one party disclosing or otherwise disclosing Confidential Information to the other party, that other party covenants that it will keep indemnified and hold harmless the disclosing party against all losses, damages, costs or expenses which it may incur as a result of any unauthorised disclosure or use of the Confidential Information by the other party.
14.1. 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:
Then that obligation is suspended so far as it is affected by the Force Majeure event during its continuance.
15.1. Limitations of Assignment by Licensee:
This Licence is personal to the Licensee. The Licensee 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.
15.2. 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.
The Term of this Agreement shall comprise the Initial Term under Clause 16.2, together with any Extended Terms under Clause 16.3, unless this Agreement is terminated under Clause 17.
16.2. Initial term:
This Agreement shall commence on the Commencement Date and shall continue for a period of 12months (‘Initial Term’).
16.3. Extended term:
After the expiry of the Initial Term, this Agreement shall continue in full force and effect unless and until the Licensee gives written notice that it wishes to terminate the Agreement, in which case this Agreement shall terminate 30 days following receipt of such notice by The Gap (‘Extended Term’) inaccordance with clause 17.1.
17.1. Termination by the Licensee:
17.2. Termination by The Gap:
17.3. Default events:
The Licensee shall be in default of this Agreement where:
Upon termination of this Agreement for any reason, the Licensee shall:
17.5. Upon Termination:
17.6. No refunds:
No refund is due to you if the Licence Agreement is terminated by the Licensee or The Gap in accordance with these terms.
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 9.1,9.5, 9.6 (Payment, Default and Debt Recovery), 10 (Warranties), 11 (Intellectual Property), 12 (Your Data), 13 (Confidentiality and Privacy) and this Clause 17 (Termination).
Every notice or other communication given under or in connection with this Agreement will be in writing and addressed to the relevant party and delivered, posted by pre-paid registered mail or sent by email to the address or email address of the relevant party.
Every notice or other communication sent by pre-paid letter will be deemed to have been received when personally delivered or four working days after it has been put in the post.
18.3. Unsolicited Electronic Messages Act:
The Licensee gives its consent for The Gap to send it electronic messages and community alerts containing commercial marketing and Product information. The Gap agrees not to disclose the Licensee’s email address to any other person for commercial purposes.
19.1. 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.
19.2. Entire Agreement:
19.3. 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.
19.4. 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.
19.5. 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.
19.6. Payments without deductions or set-off:
All payments required to be made by the Licensee under the terms of this Licence shall be made without any set-off or deduction whatsoever.
19.7. Non-solicitation of employees:
During the Term, neither party shall solicit for employment any person who is employed by the other party.
19.8. New Zealand law:
This Agreement is governed by New Zealand law. New Zealand Courts have non-exclusive jurisdiction.