Terms & Conditions v. 2021.07.01
Terms & Conditions
Last Updated Date: 1 July 2021
1. Description of the Services
Gelato AS ("Gelato”) offers graphic design templates and services such as printing (the “Services") under the trademark "Optimalprint". The Services enable you to upload and store your own photographic images on the Gelato website (the "Site"). The Services include being able to design and order physical and electronic products (the "Products"), but do not include distribution services. You may on the Site incorporate your own images and/or text ("Customer Content") into the Products.
2. Terms & Conditions
These terms and conditions ("Terms & Conditions") govern your access to and use of the Site and Services and your ordering of Products. Please read these Terms & Conditions carefully before accessing or using the Site or Services.
By accessing or using the Site or Services, you agree to be bound by these Terms & Conditions, and you confirm that you are of legal age to form a binding contract with Gelato and that you have the authority to enter into these Terms & Conditions on behalf of yourself or the company or organization you are acting on behalf of (if so, "you" shall for the purpose of this Terms & Conditions also refer to the company or organization, where appropriate).
Gelato may terminate your right to access and/or use the Site or the Services if you violate the Terms & Conditions.
3. Changes to the Terms & Conditions
Gelato may at any time change these Terms & Conditions without notice. Gelato may also change or impose additional rules or guidelines that will be posted on the Site. Such changes become effective when posted on the Site and apply to your subsequent use of the Site and Services. The Terms & Conditions in place at the time of placing an order will govern the applicable order. Gelato therefore recommends that you read these Term & Conditions in advance every time you order any Services from Gelato.
4. Site Content
Any material presented on or incorporated into the Site, such as fonts, text, images, graphics, logos, user interfaces, audio clips, templates, document layouts, artwork, tools, and the scripts and software used to implement and provide the Services (the "Site Content"), is considered proprietary to Gelato and/or the party from whom Gelato has licensed the content, and is protected by applicable intellectual property laws.
Gelato grants you a limited license to reproduce portions of the Site Content for the sole purpose of using the Site and Services for your personal or internal business purposes. You acknowledge and agree that you will not use the Site Content for any other purpose.
5. Customer Content
You are responsible for ensuring that the Customer Content is suitable for its purposes, including but not limited to ensuring that the quality (resolution, color, lighting, etc.) is adequate for printing.
Gelato does not claim ownership to Customer Content. However, by uploading Customer Content to the Site you grant Gelato a fully paid up, royalty-free, worldwide, non exclusive license to use the Customer Content to the extent necessary for the purpose of providing you with the Services. You also represent and warrant that you own and/or have obtained a license to the Customer Content, and that Gelato is free to use, modify, publish, reproduce and distribute the Customer Content as part of providing the Services without obtaining permission or license from any third party.
You must not upload any Customer Content that contains anything that is threatening, harassing, defamatory, pornographic, obscene, showing any kind of child abuse, racially offensive, likely to incite hatred against any person or group or otherwise is criminal or offensive in the minds of reasonable people or in breach of any applicable law.
You warrant that the Customer Content you upload will be free from infection, viruses and/or other code that has contaminating or destructive properties.
We do not check the Customer Content provided by you. However, if any Customer Content uploaded by you do not comply with these Terms & Conditions, we reserve the right to remove them with immediate effect without any obligation or liability to you.
6. Price and payment
The price of any Product is the price in force at the date and time of your order. Although we endeavour to keep prices accurate and up to date, sometimes errors do occur. If a price error has occurred, we will inform you of this as soon as possible.
Any transactions may be subject to sales tax based on the bill-to address or delivery address and the sales tax rate in effect at the time your transaction is completed or at the time of delivery.
You must pay for your Product order by using one of the payment methods available at the time of order. Payment will be taken in full at the time of the order unless you choose to pay by invoice where such invoice service is offered.
You warrant that all details you provide to us for the purpose of purchasing Products will be correct, that the credit card, debit card or PayPal account which you use is your own and that there are sufficient funds or credit facilities to cover the cost of any Products. We reserve the right to obtain validation of your credit card, debit card or PayPal account details before accepting your order.
7. Order and delivery
Gelato may, without notice, cancel or otherwise make changes to any orders made via the Site, if the Products ordered are no longer available or upon your breach of these Terms & Conditions.
Gelato will endeavor to process your order and manufacture your Products within one business day, however no specific time limit for processing, manufacturing and delivering your order is guaranteed.
Gelato will deliver the Products to the delivery address stated by you at the time you make the order. Gelato has the sole right to choose the carrier that will deliver your Products. Products ordered will be sent by regular post unless otherwise stated by Gelato. Your order will be deemed delivered and title and risk of loss transferred to you upon delivery to the address stated in your order. We cannot guarantee that Products ordered will be shipped jointly or be delivered on time by the carrier.
Any electronic Products shall be deemed to have been delivered either at the time we transmit the electronic Product to you via email or any other electronic communication address provided by you, or at the time we transmit a notification to you informing that the electronic Product is available for download from the Site.
8. Return and refund policy
Products that contain Customer Content are made specifically for you upon your order. Therefore, once an order is placed, it cannot be changed or cancelled.
If you receive a defect, damaged or incorrect Product (jointly: "defect"), or you are not satisfied with the quality of the Product delivered, you must report it within 14 days after the date you receive the Products by contacting us at [email protected] You may be asked to provide photographic or other documentary evidence of the existence of the issue for which you make the report.
Subject to Gelatos "Quality Guarantee", we will at your option either redeliver the Product or refund the purchase price for the Product, if you report the existence of a defect in the Product or a dissatisfaction in the quality of the Product delivered within the time frame specified above. Gelato will not redeliver or refund the purchase price if the defect or dissatisfaction is related to the Customer Content, which you have the sole responsibility for.
If we receive repeated requests from you to obtain refunds and have a reasonable basis for concern as to the potential misuse of our refund policy, we reserve the right to not accept additional orders from you and to further investigate the defect or issue before providing additional refunds.
For Products that do not contain Customer Content (and thus that are not made specially for you) you may cancel your order within 14 days after the date you receive the Products. If your order contains multiple Products that do not contain Customer Content and these Products are shipped separately, you may cancel your order within 14 days after the date you receive the last Product. You must notify Gelato about your intent to cancel your order within the timeframe specified above. We recommend that you use the standardized cancellation form provided to you when you placed your order. You must return the Products to us as soon as possible, in the same condition in which you received them, and at your own cost and risk.
9. Optimalprint Plus
Following terms apply only to customers who accepted to become a member of our Optimalprint Plus loyalty program.
Optimalprint Plus is our loyalty-based membership program through which members get access to free delivery of all their orders. Members also get access to exclusive and members-only deals and promotions, will receive early and exclusive updates on newly launched products and design collections, and get an extended 30-day Unlimited Guarantee on everything they buy on the site.
Optimalprint Plus benefits and communication
Optimalprint Plus members are entitled to free standard delivery for up to 50 orders during each 12 month membership period. A single order equates to a single package. An order should have no more than 5 items to qualify for free standard shipping under the membership program (this item limit excludes Cards). This does not include Express, Premium or any Priority shipping methods. However, in cases where standard delivery is unavailable, we will ship using the least expensive alternative shipping method for free.
Members are also entitled to a 30-day satisfaction guarantee (“Unlimited Guarantee”) which means that if you are not entirely satisfied with your order, you can return and receive a full refund (including shipping costs). The 30-day period starts from the date your Order is placed.
Optimalprint Plus members may also receive exclusive deals, promotions, and launch updates presented by email, SMS and/or push notifications.
We may from time to time change membership benefits and the terms and conditions of membership at our discretion.
Optimalprint Plus membership term
The Optimalprint Plus membership term expires 12 months after the day the customer purchased the membership. If a customer exceeds 50 orders within 12 months, they can take out another membership before their original expiration date. This will restart the membership term, which will expire 12 months after the day the most recent membership was purchased.
Optimalprint Plus Limitations
- We reserve the right to accept or refuse membership at our discretion.
- You may not transfer or assign your Optimalprint Plus membership or any Optimalprint Plus benefits to any other person, user, or customer. Your Optimalprint Plus membership is personal to you – you must not share your login details with any other user.
- The membership is limited to your personal and private use only, and not for reselling Optimalprint products or for conducting any business. Any abuse of the membership will result in its cancellation.
- From time to time, we may choose at our sole discretion to add or remove Optimalprint Plus membership benefits.
- From time to time we may change the membership fee – this will take effect immediately for new members and, for existing members, upon membership renewal.
Optimalprint Plus Fees
The current annual membership fee for Optimalprint Plus is stated on the Optimalprint website and during the checkout process. The Optimalprint Plus membership fee is non-refundable, except in the circumstances set out below. VAT may apply to the membership fee.
Optimalprint Plus Membership Cancellation
We will refund your full membership fee if you cancel your Optimalprint Plus membership at any time before you have placed an Order on the Site. You are not entitled to any refund of your membership fee if you cancel your Optimalprint Plus membership after you have placed an Order on the Site. You separately have the right to change your mind within 14 days after becoming a member: you may cancel your membership by notifying Gelato at [email protected] about your intent to cancel your membership within the timeframe specified above. We recommend that you use the standardized cancellation form provided to you when you become a member. If you choose to start using your membership benefits during the 14 day ‘cooling off’ period, we reserve the right to charge you a proportionate fee for any such use.
Optimalprint Plus Termination by us
We may terminate your Optimalprint Plus membership at our discretion without notice. If we do so, we will give you a prorated refund based on the number of full months remaining in your membership. However, we will not give any refund for termination related to conduct that we determine, in our discretion, violates these terms or any applicable law, involves fraud or misuse of the Optimalprint Plus membership, or is harmful to our interests or those of another user or member.
You are solely responsible for maintaining the confidentiality and security of your account and related password information. You are entirely responsible for all activities that occur on or via your account, and you agree to immediately notify Gelato of any unauthorized use of your account or any other breach of security that you become aware of. Gelato shall not be responsible for any losses arising out of the unauthorized use of your account.
You are responsible for ensuring that your computer system meets all relevant technical specifications necessary to upload your Customer Content. Anything you download in connection with the Services is downloaded and used by you at your own risk and you are solely responsible for any damage to your own computer system or loss of data which results from the download of any such material.
You agree that you shall indemnify and hold harmless Gelato against all third party claims and demands, including liability, damages, costs, reasonable legal fees and expenses arising out of or related to (i) your breach of these Terms & Conditions, (ii) your use of the Site, Services or Products, (iii) your violation of any third party intellectual property or other rights, or (iv) the Customer Content you have uploaded to the Site or incorporated into Products. You agree that the provisions in this section will survive any termination of these Terms & Conditions, your account or your access to the Site and/or Services.
The Site and Services are provided on an "as is" and "as available" basis without representation, warranty or guarantee of any kind. Gelato does not represent, warrant or guarantee that the Site and/or Services will be available or that it will be free from loss or corruption of data, or from viruses, interference, hacking or other security intrusion, and Gelato disclaims any liability relating thereto.
13. Limitations of liability
Gelato is not liable for the image quality of the Products. Products supplied may therefore differ from the preview on the Site, for instance in terms of sharpness, brightness or colors.
Gelato is not liable for any loss of Customer Content provided by you, including the loss of any pictures uploaded by you.
Gelato is not liable for any indirect or consequential loss or damages of any kind, including but not limited to loss of data, profit, revenue or business.
Gelato's liability is in all cases limited to the amount paid by you for the Services.
The above limitations of liability shall not apply in the event of willful misconduct or gross negligence by Gelato. Furthermore, the above limitations of liability do not affect your mandatory statutory rights as a consumer and only apply to the extent permitted by mandatory law.
Gelato may assign any rights and/or transfer, sub-contract or delegate any obligations under these Terms & Conditions. Any purported assignment, transfer, sub-contracting or delegation by you shall be ineffective. These Terms & Conditions are personal to you and are entered into by you for your own benefit and not for the benefit of any third party.
15. No waiver
Our failure to insist upon or enforce your strict compliance with these Terms & Conditions will not constitute a waiver of any of our rights. No waiver by us related to any breach of these Terms & Conditions is valid except if given in writing. Any such waiver shall not constitute a consent to or excuse for any other or subsequent breach or act unless such waiver or consent is in writing signed by us.
16. No agency
No agency, partnership, joint venture or franchise relationship is implied, intended or created by these Terms & Conditions.
17. Entire agreement
These Terms & Conditions, together with any accepted order, are the whole agreement between us. You acknowledge that you have not entered into this agreement in reliance upon any statement, warranty or representation made by us or any other person and you irrevocably and unconditionally waive any rights to claim damages and/or to rescind these Terms & Conditions by reason of any misrepresentation that is not contained in the Terms & Conditions and any accepted order.
If any provisions in these Terms & Conditions shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such provision shall be divisible from the other provisions and shall be deemed to be deleted from them. The remaining portions of these Terms & Conditions will remain in full force and effect.
20. Governing law
These Terms & Conditions are governed by the laws of Massachusetts. Any dispute which is not resolved amicably or by arbitration in accordance with Section 20 shall be subject to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts.
This provision only applies to the extent this is not otherwise regulated in mandatory consumer protection laws of the jurisdiction you reside in.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS. BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE.
In order to expedite and control the cost of disputes, Gelato and you agree that any legal or equitable claim, dispute, action or proceeding arising from or related to your use of the Services or these Terms & Conditions (“Dispute”) will be resolved by arbitration if the parties are unable to reach agreement through negotiation of the dispute. This applies to all Disputes, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, even if the Dispute arises after the termination of these Terms & Conditions. Arbitration is a less formal proceeding than a lawsuit in a court, does not involve a judge or jury, and may allow for less discovery than in a court. An arbitration is conducted by a neutral arbitrator. An arbitrator can award the same types of relief that a court can, such as damages, but a decision from an arbitrator can be subject to very limited review by a court. YOU UNDERSTAND AND AGREE THAT YOU AND GELATO ARE HEREBY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO JOIN AND PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER THE LAW.
Despite this arbitration agreement, both you and Gelato will still be able to: (a) bring an individual action in small claims court; (b) bring an individual action seeking injunctive relief in a court of law; (c) bring suit regarding intellectual property infringement; and (d) bring issues to the attention of federal, state, or local agencies, which may result in legal action.
You have the right to opt out of this agreement to arbitrate by contacting [email protected] within thirty (30) days of first accepting these Terms & Conditions. In your request, please state that you decline the arbitration agreement in this Section, and provide your full name and the e-mail address you used to register for the Services. There is no penalty for opting out of this arbitration agreement.
In the event of a Dispute, you or Gelato must give the other a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution, including any relief sought (a “Notice of Dispute”). You must send any Notice of Dispute by certified mail or Federal Express (signature required) to Gelato at Aker Brygge Business Village, Grundingen 6, 0250 Oslo, Norway and also via e-mail to [email protected] Gelato will send any Notice of Dispute to you by certified Mail or Federal Express (signature required) to your address if we have it, or otherwise to your e-mail address. You and Gelato will attempt to resolve any Dispute through informal negotiation within thirty (30) days from the date the Notice of Dispute is sent. After thirty (30) days, you or Gelato may commence arbitration.
To the fullest extent permitted under applicable law, any arbitration between you and Gelato will be settled under the Federal Arbitration Act, and will administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules in effect at the time the Dispute is filed (the “AAA Rules”), as modified by these Terms & Conditions. Information about AAA and the AAA Rules and filing process is available at http://www.adr.org/ or by contacting Gelato. YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. INSTEAD, ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE DECISION WILL BE FINAL EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU AND GELATO AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND NEITHER YOU NOR GELATO WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
Any arbitration hearing will take place in Boston, Massachusetts, in a location that you and Gelato agree upon. If your claim is for $10,000 or less, however, it is your choice whether the arbitration is conducted: (a) by an in-person hearing under the AAA Rules in the county (or parish) of your billing address; (b) by a telephonic hearing, where the parties do not appear in person; or (c) by the submission of documents only, without an in-person or telephonic hearing. Regardless of how the arbitration is conducted, the arbitrator must issue a reasoned written description that explains the essential findings and conclusions on which the decision and any award are based. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim. The parties must not disclose the amount of any settlement offer made by you or Gelato to the arbitrator during the arbitration, until the arbitrator has made a final decision and award, if any. If the arbitrator finds in your favor, Gelato will pay you the highest of: (a) the amount the arbitrator awards you, if any; (b) the last written settlement amount Gelato regarding the Dispute before the arbitrator’s final decision and award; or (c) $1,000.
Whoever files the arbitration pays the initial filing fee, unless your claim is for $10,000 or less, in which case Gelato will reimburse you for your payment of the initial filing fee. If your claim is for more than $10,000, the payment of any fees will be decided by the AAA Rules. At any time during the arbitration, the arbitrator may make rulings and resolve any disputes about the payment or reimbursement of fees or expenses; either party may also request a ruling on these issues within 14 days of the arbitrator’s ruling on the merits. If the arbitrator finds that the substance of your claim or your request for relief is frivolous or brought for an improper purpose (under the standard set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. If that happens, you agree to reimburse Gelato for any amounts previously disbursed that are otherwise your obligation to pay under the AAA Rules.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE UNDER THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR IN AN ARBITRATION PROCEEDING. The one-year period begins when the events giving rise to the Dispute first occur. If a claim is not submitted within one year, it is permanently barred. This period can only be extended by the written consent of both parties. No statutes or provisions of law that would toll or otherwise affect the time in which a party may bring a claim shall operate to extend the period limited in this Section, and any such statutes and provisions are hereby waived, to the fullest extent permitted by law.
You have the right to reject any changes to this arbitration provision, except for a change to Gelato’s contact information. You may reject a change by sending us written notice within 30 days. This will result in your account on the Site being immediately terminated. Note that this arbitration provision, as it was prior to the rejected changes, will remain in effect.
If the waiver of class actions above is found unenforceable, or this entire section is found unenforceable, then this entire section will be null and void. If that happens, you and Gelato agree that the section above on exclusive jurisdiction and governing law will govern any Dispute.
22. Contact us
To contact us about these Terms & Conditions, about your order or about our Services, please send us a message on our Site or write to us at Gelato AS, Aker Brygge Business Village, Grundingen 6, 0250 Oslo, Norway.
23. Optimalprint User Generated Content terms
By participating as a User that generates content (“User Generated Content”) including, without limitation, photographs, images, text, graphics and other materials to Optimalprint, you hereby provide Optimalprint ℅ Gelato AS, a Norwegian entity under registration number 991 753 591 (hereinafter “Gelato”), a non-exclusive, royalty-free, worldwide, transferable and perpetual (unless withdrawn pursuant to these terms) license with right of sublicense to use, reproduce, publicly display, distribute, modify, adapt, publish, translate, and create derivative works from the User Generated Content on our website, mobile application, social media channels, marketing emails in any manner to be determined in Gelato’s sole discretion and without any obligations to you.
You represent and warrant that you own or otherwise possess all necessary rights with respect to the User Generated Content and that it will not infringe, misappropriate, use or otherwise violate any copyright or other intellectual property right of any third party, that the User Generated Content will not violate any privacy right of any third party, and that the User Generated Content are not unlawful, fraudulent, threatening, abusive, obscene or otherwise objectionable. You have obtained the written consent, release, and/or permission of every identifiable individual who appears in User Generated Content for purposes of using it in any manner set out in these terms. If any identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from parents or guardian.
If you want to withdraw consent to share the User Generated Content with Gelato, you have to contact us by sending an e-mail to [email protected]
You agree to indemnify and hold Gelato and their directors, officers, shareholders, employees, consultants, agents, representatives, affiliates, distributors, partners, licensees, producers, manufacturers and third-party users harmless from and against any and all claims, liabilities, causes of action, damages, losses and expenses (including, without limitation, attorneys' fees) that arise directly or indirectly from your breach of these terms.