Optimalprint Terms & Conditions v. 2015.10.29
GELATO AS TERMS & CONDITIONS(the “TERMS AND CONDITIONS”)
Last Updated Date: October 29, 2015
This site is owned and operated by: Gelato AS.
The following chapters are included in the TERMS AND CONDITIONS:
- Terms and Conditions
- Changes to the Terms and Conditions
- Gelato Order Cancellations, Transfer and Changes
- Rights for Limited Use
- Changes to Accounts and Services
- Order and Shipment
- Optimalprint Premium Benefits and Communication
- Limitation of Liability
- Governing Law
- No Waiver
- No Agency
Description of Services
Gelato offers graphic design templates and services including printing for the corporate and private consumer market (the “Services”) under the trademark and trade name “Optimalprint”. The Services include being able to store printed material from previous orders, images, pictures and logos under "My Account" on the Gelato's website located at www.optimalprint.nl or any of Gelato's other websites (the "Site"). The Services do not include distribution services. As used in these TERMS AND CONDITIONS, “Products” refers to the physical products designed and ordered by you using the Site and Services, “Customer Content” refers to the text, pictures and/or photos owned by You which You incorporate into the Products and “Website Content” refers to the material [owned by Gelato] at the Site used in the ordering process such as all fonts, tools, text, pictures, images, graphics, user interfaces, audio clips, editorial content, photographs, templates, document layouts, logos, artwork, other information on the Site, and the scripts and software used to implement and provide the Services. Users of the Site or Services are referred to in these TERMS AND CONDITIONS, individually as a “User” and collectively as “Users.”
TERMS AND CONDITIONS
These TERMS AND CONDITIONS contain the terms and conditions governing access to and use of the Services. The TERMS AND CONDITIONS are set by Gelato AS (“Gelato”, “We”, “we”, “Us”, “us”, “Our” or “our”) and accepted by you ("You", "you", "Your" or "your") upon your use of the Site and/or the Services. Gelato together with ORDER AND SHIPMENTyou will be referred to as “parties”, each one as “party”.
These TERMS AND CONDITIONS govern your access and use of the Site and the Services. By accessing or using the functions of the Site and/or accessing or using the Services, you agree to be bound by these TERMS AND CONDITIONS, including the provisions relating to limitations on damages, arbitration of disputes, and application of Norwegian law, and to any additional guidelines, restrictions, or rules that may be posted in connection with specific sections or services of the Site. All such additional posted guidelines, restrictions, or rules are hereby incorporated by reference into these TERMS AND CONDITIONS. The contract made by you online with us incorporates these TERMS AND CONDITIONS, which shall prevail over any previous representations made by us or you, whether written or oral, and all terms and conditions proposed by you.
BY CLICKING THE "SIGN IN" BUTTON, REGISTERING FOR AN ACCOUNT OR USING ANY OF THE SERVICES YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH GELATO, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS AND CONDITIONS PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS AND CONDITIONS..
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OR DO NOT HAVE THE AUTHORITY TO AGREE TO THEM ON BEHALF OF YOUR ORGANISATION YOU MUST NOT REGISTER FOR AN ACCOUNT WITH US AND MUST NOT USE THE SERVICES.
IF YOU SUBSCRIBE TO THE OPTIMALPRINT PREMIUM SERVICES FOR ONE YEAR, IT WILL AUTOMATICALLY BE RENEWED FOR ADDITIONAL ONE YEAR PERIODS AT GELATO’S THEN-CURRENT MEMBERSHIP RATE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH THE SECTION TITLED “OPTIMALPRINT PREMIUM BENEFITS AND COMMUNICATION” BELOW.
THE TERMS AND CONDITIONS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
CHANGES TO THE TERMS AND CONDITIONS
Gelato may, at any time and from time to time, update, revise, supplement, replace, and/or otherwise modify these TERMS AND CONDITIONS and/or impose new or additional rules, policies, terms, or conditions on You with respect to use of the Services, and/or the Site. Such updates, revisions, supplements, replacements, modifications, and additional rules, policies, terms, and conditions (collectively referred to as “Revised Terms”) will be effective: (a) immediately for new Users of the Site or Services; and (b) for existing Users within thirty (30) days upon Gelato posting the Revised Terms on the Site, via the Services or otherwise making them available to You (as the case may be). When changes are made, we will make a new copy of the TERMS AND CONDITIONS available on the Site.We will also update the “Last Updated” date at the top of the TERMS AND CONDITIONS. The TERMS AND CONDITIONS in place at the time of placing an order of a Product (“Order”) will govern the applicable Order.Any continued use of the Services and/or the Site following such posting of the Revised Terms or otherwise making them available to you will be deemed to constitute acceptance of any and all such Revised Terms. Gelato may also notify You of the Revised Terms via any e-mail address registered in your Account (as defined hereinafter), although any continued use by You of the Services and/or the Site once the Revised Terms are posted on the Site, via the Services or are otherwise made available to You (whichever is earlier) shall continue to constitute acceptance by You of the Revised Terms. We strongly encourage that you check the Site frequently to see recent changes. If we do update the TERMS AND CONDITIONS and You do not agree to the Revised Terms, You must stop using the Services and the Site.
GELATO ORDER CANCELLATIONS, TRANSFER AND CHANGES
Gelato, in its sole discretion, may take any action that it deems necessary, in its sole discretion, in respect of an Order made via the Site and/or the Services, to minimize liability for Gelato and its representatives, including removing any information or requests, immediately terminating the Services, or immediately terminating or changing an Order.
Without limiting the generality of the foregoing, we may, at our sole discretion, cancel, transfer or otherwise make changes to Orders made by you through the Site or otherwise associated with the Services, under any of the following circumstances:
a. without notice, upon any breach of these TERMS AND CONDITIONS by you;
b. our receipt of an order from a court or arbitral tribunal, in each case of competent jurisdiction, requiring such action; or
c. our receipt of a decision of an Administrative Panel requiring such action in any administrative proceeding to which you were a party and which was conducted under these TERMS AND CONDITIONS or a later version of these TERMS AND CONDITIONS.
RIGHTS FOR LIMITED USE
The Site and its Website Content contain proprietary information and material that is owned by Gelato, and/or its subsidiaries and/or affiliates and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. Subject to the TERMS AND CONDITIONS, the Gelato grants you a limited license to reproduce portions of the Website 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 such proprietary information or materials in any way whatsoever except for use of the Service in compliance with these TERMS AND CONDITIONS. All rights in the Site and its Website Content are reserved worldwide by Gelato, its providers of Third Party Content, and other third party service providers, and it is strictly prohibited to retain, copy, distribute, publish, or use any portion of the Website Content except as expressly allowed in these TERMS AND CONDITIONS.You shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Site and its Website Content.
With respect to any software and associated documentation that is made available to you via the Site or the Services (“Software”), subject to your compliance with the TERMS AND CONDITIONS, the Gelato grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the TERMS AND CONDITIONS.Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
THE USE OF THE SITE, THE WEBSITE CONTENT, OR ANY PART OF THE SERVICES, EXCEPT FOR USE OF THE SITE AND SERVICES AS PERMITTED IN THESE TERMS AND CONDITIONS, IS STRICTLY PROHIBITED AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT AND OTHER FORMS OF INFRINGEMENT.
Website Content on this Site and Your Associated Rights
Gelato can at any time without prior notice add to, delete from, or modify any part of the Website Content. You do not obtain any right or claim to any parts of the Website Content through your creation of a Product. Other Gelato customers may use any part of the Website Content to create designs (e.g., logos) that have similar or identical combinations of elements of the Website Content as Your Product and Gelato does not represent, warrant, covenant or guarantee that your Product will not have similarities to designs designed and used by other parties. Gelato provides no representation, warranty, covenant, or assurance of any kind whatsoever that Products created using the Website Content will not infringe, or be subject to a claim of infringing the trademark rights, copyright, industrial design rights, other intellectual property rights, or other rights of another party, and you are solely responsible for ensuring that the Products do not infringe the intellectual property rights of any third party. It is solely your responsibility to obtain the advice of an attorney regarding whether the design is legally available for your use and does not infringe the rights of another party.
You may use this Site and its Website Content for the sole purpose of creating, designing, and ordering Products from Gelato solely through the Optimalprint site. No other download, retention, use, publication, or distribution of any portion of the Website Content is authorized or permitted. You shall not use any portion of the Website Content received from Gelato or via the Site, apart from including elements of the Website Content that are intended to be included in the finished Products as they are supplied by Gelato.
External links on the Optimalprint site are provided for your convenience. Gelato does not endorse, verify, or attest to, or offer any representation or warranty with respect to, the accuracy of the content of the web sites that are linked and accepts no responsibility for their use or content.You use all external links at your own risk. When you leave our Site, our TERMS AND CONDITIONS and policies no longer govern.You should review applicable terms and policies, including privacy and data gathering practices, of any third-party websites and applications accessed via external links and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Eligibility and Account Administration
As a registered User of the Services, you may receive an account registered with Gelato at the Site allowing a User to use features of the Services including placing Orders (an “Account”).
"Minors" (as determined by local law where you reside) shall not make purchases or engage in other legal acts on the Site without the consent of a parent or legal guardian, unless permitted by applicable local law. You must be 18 years or older to create an Account on the Optimalprint site. By signing up for an Account you represent and warrant that you are 18 years or older and that you have the right, authority, and capacity to understand, agree, and comply with the TERMS AND CONDITIONS.
You agree to provide accurate, current, and complete information required to register an Account, place Orders and whenever information relating to You is required in connection with the Site or Services (the "Registration Data"). You further agree to maintain and update your Registration Data as required to keep it accurate, current, and complete. Gelato may terminate your right to access and/or use any or all of the Site, an Account or the Services if any information you provide is false, inaccurate or incomplete. You agree that Gelato may store and use the Registration Data you provide (including credit card information) for use in maintaining your Accounts and billing fees to your credit card, and for otherwise allowing Gelato to manage Accounts.
If you have been provided with a default password for registration, we advise that you change it immediately for security purposes. Upon initial registration, you may be asked to create a username and password. You are solely responsible for maintaining the confidentiality and security of your Account and related password information. You must not reveal your Account information to anyone else or use any other person's Account. You must not allow any login password or username for your Account to be used by multiple users or individuals. You are entirely responsible for all activities that occur on or through 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 agree that you are responsible for controlling access to your Account and that you will be responsible for all Orders placed or other actions that are taken through your Account.
Gelato does not claim ownership of Customer Content.However, you represent that you own and/or have a right and license to use, license, reproduce, create derivative works from, and distribute the Customer Content (in whole or in part).You grant Gelato a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, and create derivative works from the Customer Content (in whole or in part) to the extent necessary for the purposes of providing you with the Services and Products.
You acknowledge and agree that we have no obligation to monitor the requests, information or Orders accessed or transmitted by or to you via the Site or the Services.You are solely responsible for the accuracy, substance, clarity and quality of the Customer Content. You acknowledge that you are responsible for any text you include in the Customer Content including the spelling. Gelato has no responsibility or liability for the accuracy, substance, clarity or quality of any Customer Content.You acknowledge that Gelato has no obligation to pre-screen, review or edit Customer Content, although we reserve the right in our sole discretion to pre-screen, refuse or remove any Customer Content.By entering into the TERMS AND CONDITIONS, you hereby provide your irrevocable consent to such monitoring.In the event that we pre-screen, refuse or remove any Customer Content, you acknowledge that we will do so for the Gelato’s benefit, not yours.Without limiting the foregoing, we shall have the right to reject and refuse to print any Customer Content that violates the TERMS AND CONDITIONS or is otherwise objectionable.
The Gelato has no responsibility or liability for the failure to store, transmit or receive transmission of Customer Content or the security or privacy of Customer Content. You agree that we retain the right to create reasonable limits on our use and storage of Customer Content through your Account, such as limits on file size, storage space, processing capacity, and similar limits described on the Site and as otherwise determined by the Gelato in its sole discretion. We may delete Customer Content once we have completed your Order for a Product.
Conducts of Use
You agree to use this Site and the Services in a responsible manner that is in full compliance with these TERMS AND CONDITIONS and with your local laws and regulations, including export and import regulations.
You agree that you will not use the Site, the Services, any functionality of your Account, or any portion of the Website Content:
(a) to produce Products that at Gelato´s sole discretion are offensive, unlawful, harassing, libellous, threatening, harmful, obscene, malicious or otherwise objectionable;
(b) as a trademark or service mark;
(c) for any use that, in Gelato´s sole discretion, is pornographic, for any unlawful purpose, to defame any person, to violate any person's right of privacy or publicity;
(d) to infringe upon any copyright, trade name, trademark, service mark or other intellectual
property right of any person or entity;
(e) to perform actions with the intent of introducing to any Site, the Services, or any related
storage devices or networks any viruses, worms, defects, Trojan horses, malware or any items of
disabling, disruptive or destructive nature;
(f) interfere with or disrupt any Site, any Account or the Services, or any related storage
devices or networks over which any of same are provided;
(g) copy, mirror, alter, disassemble, decompile or reverse engineer any Site, any Account or
the Services, or attempt to derive or extract the source code from all or any part of the software
making up or supporting any of the foregoing;
(h) sell, resell, license, sublicense, rent, lease, lend, market, transfer, assign, distribute, offer in a
service bureau, time share, or otherwise part with or make available to any third party, in whole or
in part, any Site, any Account or the Services;
(i) other than use of the Site or the Services by you in accordance with these TERMS AND
CONDITIONS, offer, for a fee or free of charge, services consisting of processing data through
the use of any Site, any Account or the Services;
(j) view or intercept email or any other electronic transmission not intended for you;
(k) engage in practices such as “screen scraping”, “database scraping” or “automated form
filling” to retrieve, test or obtain lists of Users, orders or other information generated or processed
by or stored via the Site, any Account or the Services; and/or
(l) access the Site, any Account or the Services for any benchmarking or competitive
Gelato shall be entitled to cancel or refuse any Order for any Product that does not conform to any of the foregoing. Gelato may terminate the Account of or the rights to use or access the Services of customers found to be using the Optimalprint site to engage in any of the foregoing activities. You are solely responsible for your use of Website Content in combination with any other images, graphics, text or other materials you incorporate into your Products. You represent, warrant, and agree that you will not include any text, image, design, trademark, service mark, or any copyrighted work of any third party in your Products unless you have obtained the appropriate authorizations from the owners. You represent, warrant, and agree that your Products do not infringe upon any rights of any third party, including copyright, trademark, right of publicity or privacy, and will not libel or defame any third party, and that you have all required rights or permissions necessary to incorporate third party material into your Products.
By placing an Order on this Site, you warrant that you have all necessary permission, right and authority to place the Order and you authorize Gelato to produce the Products on your behalf.
CHANGES TO ACCOUNTS AND SERVICES
Gelato reserves the right, for any reason, in its sole discretion, to terminate, change, amend, or suspend an Account or any of the Services. Gelato may impose limits on all or certain features of the Services or restrict your access to part or all of the Services or the Account without notice or liability. You acknowledge and agree that the Site and/or Services may be unavailable or inoperative from time to time and at any time, including due to scheduled or unscheduled maintenance or modification or circumstances beyond the Gelato’s control. Gelato reserves the right to modify or discontinue, temporarily or permanently, all or any part of the Services, with or without notice. Gelato reserves the right, in its sole discretion, to block any User's access to the Site, an Account and/or the Services.
Your access to the Site, an Account and/or the Services is completely at the discretion of Gelato, and Gelato reserves the right to block, suspend or terminate your access to the Site, an Account and/or the Services at any time for any reason including (i) non-compliance with these TERMS AND CONDITIONS, (ii) actions that may lead to liability for Gelato or its staff, consultants and associated persons and organizations including affiliates, suppliers or service providers, (iii) disruption of access to other Users, and/or (iv) violation of applicable laws or regulations.
You agree that Gelato shall not be liable for any loss or damages to you or any third party resulting from the deletion or loss of such information or resulting in any way from the termination of your Account and that you will keep Gelato fully and effectively indemnified against all losses, liabilities, damages and costs (including legal costs on a full indemnity basis) suffered by them in connection with or arising from any changes to your Account or the Services, any deletion or loss of your information, or deletion of your Account, any of the Website Content, or any Products or Services.
You must pay for any Product Order by credit card, PayPal account, or debit card, or by other means as Gelato deems satisfactory in its sole discretion, 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 this invoice service is offered.
The price of any Product is the price in force at the date and time of your Order. Service or product 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. If the sales tax rate for the applicable address changes before delivery of the Products, the new tax rate in effect at the time of delivery will apply. Gelato will only charge tax in jurisdictions where such transactions are taxable. No customers or Users are eligible for tax exemptions for transactions made using the Site or Services.
You represent, warrant, and undertake that all details you provide to us for the purpose of purchasing Products which may be offered by us on the Site will be correct; that the credit charge, PayPal account or debit card 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 charge, PayPal account or debit card details before accepting your Order.
The contract shall not have been concluded and we shall have no obligation to you until we have received your valid credit card charge, PayPal charge, or debit card payment details.
ORDER AND SHIPMENT
Time for Production
We will endeavour to process your Order and manufacture your Products within one (1) business day.However, we cannot fully predict or guarantee the time required to process your Order. You acknowledge and agree that Gelato is not obligated to process your Order or manufacture your Products within any specific time limitation and is not responsible or liable for the length of time necessary to process your Order or manufacture your Products.
Products supplied may differ from the view of the Product shown at the Site, in terms of the sharpness, brightness, or identity of colors, as a consequence of multi-standard color systems, notably the international screen based color system of RGB and the print color system of CMYK.
We endeavour to display and describe as accurately as possible the printed colors of our products that appear on the website. However we cannot guarantee that your monitor's display of any color will accurately reflect the color of the product delivered.
Shipment and Delivery
Gelato has the sole right to choose the carrier that will deliver your Products.Upon completion of printing, all sets of printed 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 transfer to you upon our delivery of your Order to any common carrier.We do not take any responsibility for and shall not have any liability whatsoever for (i) any Products once delivered to a common carrier, and/or (ii) any acts or omissions, including any distribution, relating to Products once delivered to a common carrier.
We will endeavour to deliver your Order in accordance with the estimated delivery time stated for the delivery option chosen by you in the check-out page. Notwithstanding the above, we are dependent on the carrier chosen to perform the delivery and if they encounter any problems to meet the delivery time we will work together with them trying to solve the situation. We will not be liable for any loss or damage suffered by you through any reasonable or unavoidable delay in delivery.
We cannot guarantee that printed Products ordered will be shipped jointly. We will use commercially reasonable efforts to endeavour to minimize delivery costs borne by you.
You agree that delivery of any electronic Product that is to be provided to the customer in an electronic format, shall be deemed to have occurred either (i) at the time we transmit the electronic Product via email or other electronic communication addressed to the customer or (ii) at the time we transmit a notification to the customer that the electronic Product is available for downloading from the Site.
Gelato has no responsibility or liability for any errors or omissions in the shipping address, email address or other electronic communication address provided by you.You are solely responsible for ensuring such information is accurate and current.
In general an Order that is placed cannot be changed or cancelled. If possible, the limitations and restrictions related to changes and/or cancellations of your Order are specified at the Site and/or in the order confirmation received.
If we deliver incorrect or damaged physical Products, or in the event that you discover any defect in the Products or if you are not satisfied with the quality of the Product delivered (our “Quality Guarantee”) and you require compensation or other remedy, you must report the defect within 14 days of the date you receive the Products, by contacting us at firstname.lastname@example.org. You may be asked to and are if so requested to provide photographic or other documentary evidence of the existence of a defective, damaged or incorrect Product or the quality issue for which you are not satisfied with the Product.
Subject to you being responsible for the Customer Content and following your report of the existence of a defect in a Product or a dissatisfaction of the quality of the Product delivered in each case within the time frame specified above we will at your option, redeliver a Product or refund the purchase price paid for such Product to you. For clarity, if you want to change the Customer Content or if you have made a spelling or other text mistake in the Customer Content we will not redeliver or refund the purchase price to you.
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.
Optimalprint Premium members are entitled to free delivery as shown during the checkout process. Optimalprint Premium members are also able to set reminders, which may include a discount on products as stated on the Premium reminder page. Finally, Optimalprint Premium members may receive special discounts presented by email and SMS and are therefore automatically receivers of Optimalprint Premium-related promotional emails and SMS and cannot choose not to receive them as they constitute an essential part of the membership. The only way to cease receiving such promotional emails and SMS is to terminate your Optimalprint Premium membership.
Optimalprint Premium Limitations
• We reserve the right to accept or refuse membership in our discretion.
• You may not transfer or assign your Optimalprint Premium membership or any Optimalprint Premium benefits to any other person, User, or customer.
• From time to time, we may choose in our sole discretion to add or remove Optimalprint Premium membership benefits, which modified benefits shall become effective immediately.
Optimalprint Premium Fees and Renewal
The annual membership fee for Optimalprint Premium is stated in the Optimalprint account settings. The Optimalprint Premium membership fee is non-refundable except as expressly set forth below. VAT may apply to the membership fee.
If the payment method we have on file for you is declined for payment of your membership fee, you have 30 days to provide us a new credit card or your membership will be cancelled. If you provide us with a new card and are successfully charged within 30 days, your new membership period will be based on the original renewal date and not the date of the successful charge.
UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT TO AUTO RENEW YOUR MEMBERSHIP, YOU UNDERSTAND THAT YOUR OPTIMALPRINT PREMIUM MEMBERSHIP WILL AUTOMATICALLY CONTINUE AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE MEMBERSHIP FEE AT THE THEN-APPLICABLE MEMBERSHIP RATE AND ANY TAXES, USING ANY PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
Optimalprint Premium Membership Cancellation
We will refund your full membership fee if you cancel your Optimalprint Premium membership before you have placed an Order at the Site. You are not entitled to any refund of your membership fee if you cancel your Optimalprint Premium membership after you have placed an Order at the Site.
Optimalprint Premium: Termination by Us
Gelato may terminate your Optimalprint Premium 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 AND CONDITIONS or any applicable law, involves fraud or misuse of the Optimalprint Premium membership, or is harmful to our interests or another User.
You agree that you shall indemnify, defend and hold harmless Gelato and all parties from whom Gelato has licensed portions of Website Content, and their directors, officers, and employees, against all claims, liability, damages, costs and expenses, including reasonable legal fees and expenses arising out of or related to: (i) your breach of these TERMS AND CONDITIONS; (ii) your use of, or inability to use, the Site or the Services; (iii) any action taken by Gelato as part of its investigation of a suspected violation of these TERMS AND CONDITIONS; (iv) your violation of any third party intellectual property or other rights in relation to your use of the Site or the Services; or (v) any suit, claim, or demand arising from or relating to the Customer Content incorporated into Products.
Gelato reserves the right, subject to indemnification by you, to assume the exclusive defence and control of any matter initially subject to the defence, indemnification and hold harmless obligations by you hereunder and you shall not in any event settle any matter without the prior written consent of Gelato.You agree that the provisions in this section will survive any termination of your Account, these TERMS AND CONDITIONS or your access to the Site and/or Services.
The Site, the Website Content, the Services, and the Products (other than our STATED quality guarantee) are provided on an "as is" and “as available” basis without representation, warranty, or guarantee of any kind, either expressed or implied, including, but not limited to, warranties of merchantability, title, fitness for a particular purpose, or non-infringement.ALL SUCH WARRANTIES, CONDITIONS AND PROMISES (other than our STATED quality guarantee) ARE EXCLUDED TO THE FULL EXTENT PERMITTED BY LAW AND WITHOUT LIMITATION TO THE FOREGOING:
GELATO DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME GELATO MAY TAKE DOWN OR REMOVE THE SITE AND/OR SERVICES OR ANY FUNCTIONALITY THEREOF, FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICES AT ANY TIME, WITHOUT NOTICE TO YOU; AND
GELATO DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT THE SITE AND/OR SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND THE GELATO DISCLAIMS ANY LIABILITY RELATING THERETO.
You acknowledge and agree that your submission of personal information in accordance with the Services is at your sole risk, and Gelato hereby disclaims any and all liability to you for any loss or liability relating to your personal information in any way.
You acknowledge that third party product and service providers may advertise their products and services on the Site and that Gelato may from time to time form partnerships or alliances with some of these vendors or new vendors/partners in order to facilitate the provision of products and services to you. However you acknowledge and agree that at no time is Gelato making any representation or warranty regarding any third party's products or services, nor will Gelato be liable to you or any third party for any claims arising from or in connection with such third party products and services. You hereby disclaim and waive any rights and claims you may have against Gelato with respect to third party products and services to the maximum extent permitted by law.
All disputes between you and any party other than us regarding the Customer Content used to produce a Product via the Optimalprint site shall be resolved between you and such other party through any court, arbitration or other proceeding that may be available. We will not be obliged to participate in any way in any dispute between you and any party other than us regarding the quality and quantity of your Order placed at the Optimalprint site. You shall not name us as a party or otherwise include us in any such proceeding. In the event that we are named as a party in any such proceeding, we reserve the right to raise any and all defences deemed appropriate, and to take any other action necessary to defend ourselves.
Any comments, suggestions, proposals or other feedback provided to Gelato in connection with the operation or content of this Site shall be provided by the submitter and received by Gelato on a non-confidential basis. You represent and warrant that you have all rights necessary to submit the comments, suggestions, proposals or other feedback .All such comments, suggestions, and other information shall become the exclusive property of Gelato. By submitting any such information to Gelato, you agree that you are transferring and assigning, at no charge, all of your right, title and interest in the information, including all copyrights and other intellectual property rights. You agree that Gelato shall be free to use such information on an unrestricted basis.
LIMITATION OF LIABILITY
You agree that we, and our directors, officers, employees, agents or other representatives, will not be liable for any special, incidental, indirect, or consequential damages of any kind, or for any damages whatsoever resulting from: (1) suspension or loss of the Services; (2) use of the Site and/or the Services; (3) interruption of the Services or interruption of your business; (4) access delays or access interruptions to the Site or the Services or delays or access interruptions you experience in relation to printing services with us; (5) loss or liabilities resulting from acts of or events beyond our control; (6) data non-delivery, mis-delivery, corruption, destruction or other modifications; (7) the processing of an application for a printing service; (8) damages or consequences arising from or related to your inappropriate or unauthorized use of this site or its content; or (9) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED.
Gelato and its licensors, suppliers, or vendors, and their respective officers, directors, employees, agents, or other representatives SHALL NOT be liable for any special, incidental, indirect, or consequential damages of any kind, or for any damages whatsoever resulting from loss of use, data, or profits, whether or not Gelato has been advised of the possibility of damage, arising out of or in connection with the use or performance of the site or of failure to provide products or services that you order from Gelato or its affiliates, including without limitation, damages arising from error, omission, virus, delay, or interruption of service.
IN ADDITION TO OTHER LIMITATIONS AND EXCLUSIONS IN THESE TERMS AND CONDITIONS, IN NO EVENT WILL WE OR OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, ARISING OUT OF OR RELATED TO OPTIMALPRINT PREMIUM.
OUR TOTAL, MAXIMUM AGGREGATE LIABILITY AND THE TOTAL, MAXIMUM AGGREGATE LIABILITY OF THE GELATO’S REPRESENTATIVES, ARISING FROM OR RELATING TO THESE TERMS AND CONDITIONS (REGARDLESS OF THE FORM OF ACTION OR CLAIM, e.g., CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY) IS LIMITED TO ONE HUNDRED DOLLARS ($100) U.S. OR FOR PRODUCT REFUNDS, THE PURCHASE PRICE PAID. THESE EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE CANCELLATION OR TERMINATION OF THESE TERMS AND CONDITIONS, ANY ACCOUNT, OR AN OPTIMALPRINT PREMIUM MEMBERSHIP.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GELATO AND YOU.
IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Gelato's headquarters is in Oslo, Norway and all transactions take place on Gelato servers located in Europe or any other countries where Gelato deem necessary to place a server. Issues related to the protection, infringement, or misuse of copyrighted materials shall be governed by the copyright laws of Norway.
All other matters relating to your access to or use of this Site and the Services shall be governed by the laws of Norway to the degree this is not otherwise regulated in mandatory consumer protection laws of the jurisdiction you reside in.
Any legal action or proceeding relating to or arising from your access to or use of this Site and the Services shall be instituted in Oslo, Norway. You agree to submit to the non-exclusive jurisdiction of the Courts of Oslo, Norway and agree that venue in these courts is proper in any such legal action or proceeding, to the degree this is not otherwise regulated in mandatory consumer protection laws. This means that you may bring a claim to enforce your consumer protection rights in connection with these TERMS AND CONDITIONS in Norway or in the EU country in which you live.
Our failure to insist upon or enforce your strict compliance with these TERMS AND CONDITIONS will not constitute a waiver of any of our rights. No waiver or acquiescence by us related to any breach of these TERMS AND CONDITIONS is valid except if given in writing.Any such waiver or acquiescence shall not constitute a consent to or waiver of or excuse for any other different or subsequent breach or act unless such waiver or consent is in writing signed by us.
If any covenant, obligation, agreement, term or condition of these TERMS AND CONDITIONS or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable the remainder of these TERMS AND CONDITIONS, or the application of such covenant, obligation, agreement, term or condition to persons or circumstances other than those in respect of which it is held invalid or unenforceable, shall not be affected thereby and each covenant, obligation, agreement, term and condition of these TERMS AND CONDITIONS shall be separately valid and enforceable to the fullest extent permitted by law and the invalid or unenforceable covenant, obligation, agreement, term or condition (as the case may be) shall be modified so as to be enforced to the fullest extent permitted at law.
No agency, partnership, joint venture or franchise relationship is implied, intended or created by these TERMS AND CONDITIONS, the provision of the Account, or the provision of any of the Products or Services.
No remedy conferred upon or reserved in our favour under these TERMS AND CONDITIONS will exclude any other remedy so conferred or reserved or existing at law or in equity but each will be cumulative and in addition to every other remedy given under these TERMS AND CONDITIONS or existing at law or in equity.
If we become aware of any possible violations by you of the TERMS AND CONDITIONS, we reserve the right to investigate such violations.If, as a result of the investigation, we believe that criminal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.The Gelato is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Site, the Website Content, the Services, or the Products, including Customer Content, in the Gelato’s possession in connection with your use of the Site, the Website Content, the Services, or the Products, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the TERMS AND CONDITIONS, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of the Gelato, its Users or the public, and all enforcement or other government officials, as the Gelato in its sole discretion believes to be necessary or appropriate.