Gap Commerce Terms of Service

Last updated: May 17, 2024

These Terms of Service (“Terms”) govern the access and use of the Software provided by Gap Commerce (“Gap”) pursuant to your Order. By purchasing, accessing, or using the Software, you are confirming that you accept these Terms. The terms of your Order take precedence over any inconsistent terms in these Terms. If you have entered into a separate written agreement with Gap regarding the use of Software, then the terms of that agreement will prevail and will govern your use of the Software. In agreeing to these terms on behalf of your employer, you are representing that you have the authority to bind that entity to the Treez Order Form and these Terms and that your agreement to these terms will be treated as the agreement of that entity. If you have been granted access to use the Software by your account administrator, you are subject to these Terms as an Authorized User through that account and you are required to abide by the terms of these Terms and our Privacy Policy.

1.1. DEFINITIONS

“API” means the application programming interfaces with respect to the Software that, within the customary meaning in the software industry, refers to specifications of functions, methods, procedures and protocols according to which a reasonably skilled software programmer may access and use the Software or Customer Data.

“Applicable Laws” mean all foreign, domestic, federal, state, local, and regional laws, rules, regulations, ordinances and orders, guidelines, and industry self-regulatory principles.

“Authorized Users” means your employees, contractors and agents that you authorize and for whom you have purchased a subscription (each with a user login and password) to use the Software on your behalf.

“Confidential Information” means any non-public information that is marked or identified as confidential (or under the circumstances of the disclosure or the nature of the information, it would reasonably be understood to be confidential or proprietary) at the time of disclosure.

“Customer Data” means data, content or information (i) inputted by or on behalf of Authorized Users into the Software, or (ii) created, collected, generated, processed, or stored in connection with use of the Software by Authorized Users (including, without limitation, purchase history of consumers and personally identifiable information of consumers such as name, address, email and driver identification number). Customer Data excludes Software Performance Data (as defined in Section 6.3 below).

“Equipment” means any and all internet access, computer hardware, computer networking and other services needed to access and use the Software.

“Feedback” means feedback or suggestions about the features, functions, or operation of the Software.

“Order” means the Treez eCommerce Subscription Order Form that references and incorporates these Terms.

“Renewal Order” means a notice regarding the renewal of your subscription to the Software.

“Software” means the Gap cloud-based software that is listed in the Order.

“Subscription Fees” means the subscription fees listed in your Order for the use of the Software.

“Subscription Term” means the subscription term listed in the Order.

“You”, “your”, and “Customer” mean, collectively, the customer identified in the Order (and includes any of your affiliates and subsidiaries that are owned or controlled by you, or are under common control with you).

2.2 SUBSCRIPTION TERMS

2.1. Software Subscription. Subject to the payment of the Subscription Fees and the terms and conditions of these Terms, you may access and use the Software in the configuration described in the Order solely for your own internal business purposes during the Subscription Term and in accordance with any other terms and conditions provided in the Order. You must purchase a separate subscription for the Software for each retail or physical location at which you desire to use the Software. You may purchase additional services, products, or Authorized Users to add to your existing subscription at any time and the applicable Subscription Fees for these purchases will be prorated for the remainder of the applicable Subscription Term. Gap provides technical support and updates for the Software during the Subscription Term (at no additional charge) in accordance with Section 4 below. Subscription and payment commences no later than the date in which the Gap e-commerce instance is delivered to the Customer for use. For the avoidance of doubt, you are responsible for your Authorized Users’ compliance with these Terms and their acts and omissions in connection with use of the Software.

2.2. Subscription Renewal. The Subscription Term shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term, unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant Subscription Term. If in any such event that Customer documentation explicitly specifies that an Order is not subject to automatic renewal, the agreement shall continue on a month-to-month basis from the last date of the Subscription Term. Irrespective of Subscription Term, all Customer obligations set forth in these Terms shall remain in effect so long as the Customer is still using Gap services.

2.3. Professional and Implementation Services. If applicable a separate Invoice for any professional services to be performed by Gap in connection with the configuration and implementation of the Software, such professional services shall be delivered in accordance with that Invoice, or, if applicable, will be described in a separate statement of work (SOW). These Terms will apply to any such professional services provided. Such professional services will be billed according to the schedule set forth in the separate Invoice.

3.3 USE OF THE SOFTWARE

3.1. Software Access. As part of the initial registration process, Gap will provide you with an administrative username and password for your account. You agree to promptly notify Gap of any suspected or unauthorized use of your account that you become aware of.

3.2. Authorized Users. You determine the access controls for your Authorized Users. You are responsible for the activity occurring under your account by Authorized Users (and their compliance with these Terms). Authorized User passwords are for named individual users and cannot be shared or used by more than one user at a time, although, you may reassign an Authorized User in your account (but not their password) to a new Authorized User who is replacing a former Authorized User (who no longer requires access or use of the Software).

3.3. Restrictions. You will not (and will not knowingly allow any third party to): (a) reverse assemble, reverse compile, reverse engineer, or otherwise translate the Software or otherwise attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization) from the Software that is not provided to you by Gap, (b) permit the use of the Software by a third party except as expressly set forth in these Terms, or use the Software in any manner to provide service bureau, time-sharing or other computer services to any third party, (c) use any Confidential Information of Gap related to the Software to intentionally assist in the development of a product that is competitive with the Software; (d) remove or obscure any identification, copyright or other proprietary or restrictive notices or legends contained or included in the Software or documentation provided by Gap, (e) modify, incorporate into or with other software, or create a derivative work of the Software or any portion thereof, except as expressly authorized by Gap; (f) use the Software in any manner that interferes with or disrupts the integrity or performance of the Software or the components thereof, (g) gain (or attempt to gain) unauthorized access to any other accounts, computer systems, or networks connected to any server or systems through hacking, password mining or other means; (h) access systems, data or information not intended by Gap to be made accessible to you or obtain any materials or information through any means not intentionally made available by Gap; or (i) use the Software in violation of these Terms.

3.5. Third Party Application Providers. The Software may from time-to-time be enhanced by Gap, in its sole discretion, to enable Customers to interface, and share their Customer Data (via an API), with third parties that provide separate data analysis or other software-driven services (each, a “Third Party App Provider”). You acknowledge and agree that: (a) Gap may, at any time in its sole discretion, elect to enable or disable such interface with Third Party App Providers and you are not relying on delivery of future interfaces, or functionality, with Third Party App Providers in obtaining subscriptions for the Software, and (c) any use of a Third Party App Provider’s products or services is solely your decision, and therefore, is subject to any separate agreement between you and such Third Party App Provider. Gap will not be liable in any way for the acts or omissions of any Third Party App Provider (including, without limitation, any misuse of your Customer Data by such Third Party App Providers), and as between Gap and You, You bear the entire risk of interfacing, and sharing Customer Data, with and using the products and services of any Third Party App Provider.

4.4 SUPPORT TERMS

4.1. Technical Support. As part of these Terms and included in the Subscription Fees, Gap will provide you with technical support through its online knowledge base, interactive chat support program and critical-issue telephone support. Support requests are submitted through Gap’s online support program. Gap support hours, response times to different technical support requests and general support procedures are set forth in the support policies described in your Order. Gap will not be responsible for providing technical support for problems in the operation or performance of the Software if the problem relates to errors in your Equipment, data, computer hardware, networking or internet access, databases, access to other software or databases, or from any unauthorized use, modification, or combination of the Software (based on the documentation that is provided with the Software). Technical support is not intended as a substitute for training and Gap support personnel may refer you to the online training materials and documentation included in the Software, or suggest you contract for training, if your request is training related.

4.2. Software Updates. Gap makes updates (error corrections, bug fixes, and enhancements) to the Software on an ongoing basis. Except in the case of urgent updates, Gap schedules maintenance during appropriate, non-peak usage hours (that minimizes the impact on all users, worldwide) and will make commercially reasonable efforts to provide advance notice of any planned unavailability. Gap’s standard window for scheduled maintenance is 1:00AM to 5:00AM Pacific Time and Gap will make best efforts to minimize unavailability of the Software outside of such window.

4.3. Your IT Infrastructure Responsibilities. You will be responsible for maintaining minimum service levels of the Equipment, your information technology infrastructure and to provide information technology support throughout the Subscription Term as follows: (a) 99.95% power availability; (b) 99.95% network uptime (ensure local Ethernet wiring is secure and operational); (c) available local or onsite IT personnel to help troubleshoot any power, printer, wiring, network or internet outages; (d) ensure the Equipment and local workstations have routine maintenance and are regularly updated with the most up-to-day firewall and anti-virus software; (e) provide consistent internet connectivity with a minimum bandwidth of 1 mbps upload and 10mbps download. Gap reserves the right to modify these requirements from time to time as technologies and the Software are enhanced and evolve.

5 PAYMENT

5.1. Payment Terms. Unless otherwise set forth in your Order: (a) Subscription Fees and any other mutually agreed fees and charges are due and payable in advance within 30 days from the invoice date, and Invoices will be sent directly to the billing contact identified on the Order, which you may update by providing written notice to Gap. Late payments (on any undisputed amounts) may be subject to interest charges of 1.5% per month, or the maximum permitted by Applicable Law, whichever is lower, and the expenses associated with those collections. Billing disputes must be reported to Gap (in writing) within 60 days from the invoice date. Except as otherwise provided in these Terms, all payment obligations are non-cancelable and once paid are nonrefundable.

5.2. Taxes. All fees hereunder do not include any applicable sales or use taxes (such as GST or VAT). These taxes (if applicable) will be charged separately on the Order, unless you provide (in advance) a valid tax exemption certificate authorized by the applicable taxing authority. Customers are liable for applicable sales and use taxes.

7.6 DATA AND DATA PROTECTION

6.1. Customer Data. (a) You are the exclusive owner of and retain all rights, title and interest to your Customer Data. You are responsible for the accuracy, quality, integrity, and legality of your Customer Data. You agree to abide by (and be responsible for your compliance with) Applicable Laws regarding your access and use of Customer Data with the Software. You assume full and complete responsibility for resolving any dispute regarding your right to the Customer Data. Gap shall have no obligation whatsoever to resolve or intervene or incur any cost in any dispute or claim related to Customer Data.

(b) You hereby grant Gap a nonexclusive, worldwide, sublicensable, assignable, fully paid-up and royalty-free right and license to collect, process, use, transmit, and store the Customer Data for the purpose of providing the Software (and applicable Gap services, as contemplated herein) and as permitted under Applicable Law.

(c) In addition, Gap may access and use de-identified Customer Data and other data generated, accessed or processed through use of the Software (such as specific product inventory and sales data) to improve the Software, Gap’s services, develop new products and services and engage in any other business activity, including, without limitation, selling reports, summaries, analysis, or other outputs derived from such data to third parties for their own business purposes.

6.2. Privacy Disclosures. You will have an easily accessible privacy policy that contains the word "Privacy" and which will be linked to conspicuously from the applicable home page and other relevant pages of the applicable websites and/or within the applicable applications. The privacy policy must comply with the requirements of the Applicable Laws for notices to individuals whose data is collected by or provided to Gap for use as contemplated by these Terms.

6.3. Gap Monitoring. Gap monitors the performance aspects of the Software, in order to validate acceptable availability of the Software and potential negative activity; provided, however, that the data which Gap captures is in support of monitoring uptime and downtime via application endpoint services URLs and logs, and IP addresses, insofar as such data is required to validate the availability of the Software and associated connectivity and activity (“Software Performance Data”).

6.4. Data Security. (a) You will at all times maintain commercially reasonable and appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of all your software applications interfacing with the Software, and all other network, Equipment and computing infrastructure used in connection with your use of the Software (collectively, the “Customer IT Infrastructure”). Such safeguards include, but are not limited to, adequate access controls that: (a) govern access to the Customer IT Infrastructure; (b) restrict access to each component of the Customer IT Infrastructure to only those of your personnel, contractors or agents whose job functions require such access; (c) are periodically reviewed to ensure that such access controls remain appropriate. In addition, you will conduct vulnerability testing of the Customer IT Infrastructure at regular intervals, in a manner consistent with prevalent industry standards, and will promptly and diligently take appropriate measures to mitigate the risks associated with any security vulnerabilities discovered as a result of such vulnerability testing. Without limiting the generality of the foregoing, you are responsible for (i) properly configuring the access rights for your Authorized Users, (ii) your Authorized User’s access and use of the Software, (iii) properly securing your Equipment, facilities, registers, computers and other devices used to access the Software and (iv) the secure transmission of your Customer Data to the Software.

(b) Gap will maintain commercially reasonable and appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Customer Data stored in connection with your use of the Software.

6.5. Data Access and Controls. You manage and control access to your account (by Authorized Users) and the use and processing of your Customer Data by the Software. Except as otherwise noted herein, Customer Data will not be accessed by Gap except as necessary (by authorized personnel) to identify, investigate, or resolve technical problems with the Software or to verify your compliance with these Terms. Except as otherwise noted herein, Customer Data that is accessed by Gap will (a) be kept confidential, (b) handled according to Applicable Laws, and (c) not be shared with any unauthorized personnel or comingled with other customer’s data.

6.6. Disclosure of Data. Gap may disclose Customer Data if the disclosure is necessary to comply with a valid court order or subpoena or to comply with Applicable Law of a governmental authority. Gap will promptly notify you of the request for such disclosure (unless prohibited by such process) and will cooperate with you if you choose to contest the disclosure, seek confidential treatment of the Customer Data to be disclosed, or to limit the nature or scope of the Customer Data to be disclosed.

6.7. Data Processing Terms. To the extent Gap processes any Customer Personal Information, Gap shall comply with the obligations set forth in Data Processing Addendum attached as Appendix A below (“DPA”).

8. 7. TERMINATION; SUSPENSION

7.1. Termination for Cause. A party may terminate these Terms if the other party commits a material breach of these Terms and does not cure the breach within 30 days from receiving written notice. If you terminate these Terms for cause, Gap will refund to you the unused portion of the Subscription Fees that were paid for the Software for the remainder of the Subscription Term.

7.2. Suspension of Software. Gap reserves the right to temporarily suspend access to the Software if (a) you have undisputed amounts more than 30 days past due, (b) you have not paid the subscription renewal fees when due, or (c) Gap reasonably determines that you are using the Software in a way that creates a security vulnerability to the Software, is in breach of these Terms, or violates Applicable Laws. Gap will use commercially reasonable efforts to give you prior notice if access will be suspended and will promptly restore access once the issue has been resolved. Gap will not suspend access if you are reasonably and in good faith disputing a charge and cooperating in resolving the dispute.

7.3. Effect of Termination. On the expiration or termination of these Terms, you will (a) stop using and accessing the Software (other than as permitted in Section 6.3), and (b) pay to Gap any Subscription Fees that had accrued (but had not been paid) prior to the effective date of termination. In the event that there is no termination for cause by Customer, the entire unpaid Subscription Fees shall be due as there is no provision for early termination. Any post-termination transition assistance requested from Gap is subject to the mutual agreement of the parties (and may require payment of professional services fees for such assistance). Sections 3.3, 5 (while Customer Data is stored in the Software), and 7 through 12 will survive the expiration or termination of these Terms.

9.8 CONFIDENTIALITY

8.1. Confidentiality. In addition to the confidential treatment of Customer Data pursuant to the terms of Section 6, in connection with the use of the Software or in the performance of professional services, each party may need to provide the other with certain Confidential Information, which shall include the pricing and other terms and conditions set forth in these Terms and on the Order. The receiving party may only use this Confidential Information for the purpose for which it was provided and may only share this Confidential Information with its employees, agents, and representatives who need to know it, provided they are subject to similar confidentiality obligations. The receiving party will use the same degree of care to protect and prevent any unauthorized use or disclosure of the disclosing party’s Confidential Information that it uses to protect its own confidential information, but in no event less than reasonable care.

8.2. Exceptions. Confidential Information does not include any information that (a) was known (without any confidentiality obligations) prior to disclosure by the disclosing party, (b) is publicly available (through no fault of the receiving party), (c) is rightfully received by a third party (without a duty of confidentiality), or (d) is independently developed (without access or use of Confidential Information). The receiving party may disclose Confidential Information when compelled to do so by law, so long as the receiving party provides prior written notice of the disclosure (if legally permitted) to allow the disclosing party the opportunity to seek protection or confidential treatment or to limit or prevent such disclosure. The receiving party also agrees to cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed.

8.3. Injunctive Relief. Each party acknowledges and agrees that violation of any covenants with respect to the Confidential Information of the other party may cause such other party irreparable harm, and that such other party will be entitled to seek an injunction and other equitable relief, without payment of any bond and in addition to all other remedies available to it as provided above or otherwise by law, to prevent any such violation or to secure enforcement of these Terms.

10.9 PROPRIETARY RIGHTS

9.1. Gap IP. Gap owns all right, title and interest in and to Software, including any modifications and enhancements. These Terms do not grant any ownership rights to the Software and the Subscription Fees only apply to your use of the Software. Gap may ask you for Feedback. If you elect to provide any Feedback Gap may freely use and exploit the Feedback you provide without any obligations or restrictions. Any intellectual property rights which may be created as a result of Feedback shall vest in and remain the property of Gap.

9.2. Attribution. Unless otherwise set forth on the Order, Gap may (i) use your name (and the corresponding trademark or logo) on Gap’s website and marketing materials to identify your business as a customer and (ii) create self-promotional materials, press releases, etc. regarding your business’ use of the Software.

11.10 REPRESENTATIONS AND WARRANTIES

12.10.1. Mutual Warranties. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) it has the full power and authority to enter into these Terms and perform its obligations hereunder; and (c) these Terms, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.

13.10.2. Additional Customer Warranties. You represent and warrant that, in connection with the collection, processing, transmission, and storage of any Customer Data applicable to your use of the Software or third party applications (pursuant to Section 3.5) in connection therewith, You (a) have obtained and shall maintain all necessary rights, licenses, consents, permissions, and lawful bases in compliance with all Applicable Laws to (i) use Customer Data for the purpose of using the Software, (ii) provide to Gap data derived from the Customer Data as necessary for Gap to operate the Software, and (iii) provide Customer Data to other Third Party Application Providers as contemplated herein; and (b) have provided legally adequate privacy notices, disclosures and opt-out opportunities to all individuals for whom you have collected Customer Data. You also represent and warrant that the processing of Customer Data for the Software or any third party applications (pursuant to Section 3.5) in connection therewith is lawful under Applicable Law.

14.11 DISCLAIMER AND LIMITATION OF LIABILITY

11.1. Disclaimer. Gap does not offer retail, tax, regulatory compliance or business operations advice. Gap may provide general information about standard retail operations, tax rates, and other business practices, but such general information is intended for informational purposes only, and is not intended to be relied upon as professional advice, or as any statement that you are in compliance with Applicable Laws. Gap recommends that you seek the advice of other financial, tax or legal experts for advice in these areas. THE SOFTWARE AND GAP SERVICES ARE PROVIDED “AS-IS” AND GAP DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE ENTIRELY SECURE, COMPLETELY ERROR FREE, ACCURATE, UNINTERRUPTED, OR MEET YOUR REQUIREMENTS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, GAP DISCLAIMS ANY WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

11.2. Limitation of Liability. EXCEPT FOR ANY GROSS NEGLIGENCE, WILLFUL MISCONDUCT, A PARTY’S INDEMNIFICATION OBLIGATIONS (PURSUANT TO SECTION 11), OR A BREACH OF SECTION 8 (CONFIDENTIALITY), NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOSS OF PROFITS, SALES, CUSTOMERS, GOODWILL, OR DATA OR OTHER INTANGIBLE LOSSES (REGARDLESS OF THE BASIS OR TYPE OF CLAIM AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN ADDITION, IN NO EVENT WILL Gap BE LIABLE HEREUNDER FOR ANY AMOUNT OF DIRECT DAMAGES THAT EXCEEDS THE SUBSCRIPTION FEES DUE FROM YOU UNDER THE APPLICABLE ORDER DURING THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THESE EXCLUSIONS ARE MEANT TO APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF THE FAILURE OF ANY SPECIFIC REMEDY. Notwithstanding the above, the parties agree that any material breach of Section 3, Section 8 or Paragraph 9.1 will likely cause irreparable injury and that a party may seek injunctive relief in a court of competent jurisdiction to prevent an initial or continuing breach of Section 3, Section 8 or Paragraph 9.1 in additional to any other relief to which the owner of such proprietary information or Confidential Information may be entitled.

15.12 INDEMNIFICATION

12.1. By Gap. Gap will defend, indemnify and hold You harmless from and against any claim brought against You by a third party, any final award of damages or settlement amount, and any liabilities or expenses incurred by you (including reasonable attorneys’ fees) as a result of the claim, which alleges that the Software infringes any intellectual property right of a third party, provided that Gap will have no obligation to the extent such claim arises from: (i) use of the Software in combination with other products or services (including, without limitation, any products or services provided by Third Party App Providers) if such infringement or misappropriation would not have arisen but for such combination; (ii) use of the Software by Customer for purposes not authorized under these Terms; or (iii) any modification of the Software not made or authorized in writing by Gap where such infringement or misappropriation would not have occurred but for such modification. If the use of the Software is (or in Gap’s opinion is likely to be) enjoined due to such a claim, Gap will either (a) procure the right to continue using the Software under the terms of these Terms, (b) replace or modify the Software so that it is non-infringing (but functionally equivalent), or (c) if Gap is unable to achieve either of these options, then Gap may cancel your license with respect to the infringing Software and refund you the unused portion of the Subscription Fees paid for the Software for which the use is legally prohibited. This section describes Gap’s entire responsibility and your sole remedy for any infringement claim or action regarding the Software.

12.2. By You. You will defend, indemnify and hold Gap, its affiliates, and its and their respective officers, directors, employees, and agents harmless from and against any claim (including, without limitation, any and all actions, claims, costs, damages, expenses, fees, fines, injuries, lawsuits, liabilities, and losses) brought against Gap by a third party (including, without limitation, by a Third Party App Provider), any final award of damages or settlement amount, and any liabilities or expenses incurred by Gap (including reasonable attorneys’ fees) as a result of the claim, which alleges (a) the access, use, or provision of any Customer Data in connection with your use of the Software or any products or services provided by Third Party App Providers violates any Applicable Law, or the intellectual property or other proprietary rights of any third party, (b) breach of any of your representations, warranties or obligations under these Terms, or (c) your gross negligence, willful or wanton misconduct in connection with these Terms.

12.3. Process. These indemnity obligations are conditioned on the indemnified party promptly notifying the indemnifying party in writing of the claim (a delay in providing notice does not excuse these indemnity obligations unless the indemnifying party is prejudiced by such delay), the indemnified party giving the indemnifying party sole control of the defense of the claim (and in any related settlement negotiations), and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense. The indemnified party may participate in the defense of the claim using its own counsel (at its own expense). The indemnifying party may not settle the claim without the indemnified party’s consent if such settlement imposes a payment or other obligation on the indemnified party.

16.13 GENERAL

13.1. Relationship of the Parties. These Terms do not create or imply any agency, partnership, or franchise relationship. These Terms are intended for the benefit of the parties and are not intended to benefit any third party. Neither party has the authority to assume or create any obligation on behalf of the other party.

13.2. Assignment. Neither party may assign the Order or these Terms without the other party’s prior written consent (except to an affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assets or equity of such party). Any attempt to assign the Order or these Terms other than as permitted in these Terms will be null and void.

13.3. Independent Contractors. The parties are independent contractors under these Terms and nothing in these Terms will be construed to create a partnership, joint venture, agency, or employer-employee relationship between you and Gap. Neither party will act in a manner that expresses or implies a relationship other than that of independent contractor, nor bind the other party.

13.4. Notices. Any notice, approval, consent, or other communication intended to have legal effect under these Terms must be given to the other party in writing, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

13.5. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms (excluding payment obligations) as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

13.6. Contracting Entity and Governing Law. These Terms shall be governed by the laws of the State of California (which applies without regard to any conflicts of law principles) and the jurisdiction and venue for any disputes arising out of or relating to these Terms will be a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sales of Goods is specifically excluded from application to these Terms.

13.7. Severability. In the event that any provision of these Terms is illegal or otherwise unenforceable, such provision will be severed and the remaining portion of these Terms will remain unaffected and will continue in full force and effect.

13.8. Entire Understanding. The Order and these Terms constitutes the complete and exclusive understanding and agreement between the parties regarding this subject and supersedes all prior or contemporaneous agreements or understandings (written or verbal) relating to this subject matter of these Terms. No terms in any purchase order or in any order documentation (other than the Order or a Renewal Order) are incorporated into or form any part of these Terms. If any terms are found to be void or unenforceable, the remaining terms of these Terms will remain in full force and effect. Any waiver, modification, or amendment of these Terms must be in writing and signed by authorized representatives of both parties. These Terms may be provided in different languages, however, the English version of these Terms will control. The parties agree that this contract is written and signed in English.

13.9. Amendment. Gap may change or update any part of these Terms at any time by posting the revised terms on the Gap website. Gap will notify you of any changes that, in its sole discretion, materially impact these Terms. The updated Terms will be effective as of the time of posting, or on such later date as may be specified in the updated Terms, and your continued use of the Services after any such changes are effective will constitute your consent to such changes.

Appendix A

Data Processing Addendum

To the extent that Gap (referred to herein as “Service Provider”) processes any Customer Personal Information (as defined herein) in connection with your use of the Software, the Customer and Gap agree as follows:

17.1 DEFINITIONS

18.2 RESTRICTIONS ON USE OF PERSONAL INFORMATION

Schedule 1: Description of Personal Information Processing

1. Subject matter of Processing

2. Duration of Processing

3. Nature and Purpose of Processing

4. Categories of Personal Information

5. Consumers

6. Restrictions on Use of Personal Information.