Fintech-company Affirm takes back brand control with Gelato
Last Updated Date: 4 December 2019
These Terms form an integrated part of the Order Form (collectively, the "Agreement"). In the event of conflict,
the Order Form shall prevail. The Agreement governs the order and delivery of the Services as between the Customer and Gelato. By ordering a Service, these Terms are deemed accepted by the Customer. The person who places an order on behalf of the Customer confirms that he or she has the authority to bind the Customer.
These Terms may be amended from time to time. The Terms posted on the Platform at the time of an order shall apply to the delivery of such order.
If you are placing an Order on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
"Agreement" shall have the meaning set out above.
"Affiliate" means, in relation to any entity, another entity which is Controlling, Controlled by or under common Control with the aforementioned entity; where "Control" means that an entity directly or indirectly (a) owns more than 50 percent of the equity interests or voting rights of another entity or (b) otherwise has the power to direct or cause the direction of the management and policies of another entity, whether by contract or otherwise.
"Customer" means the company ordering the Service, as indicated as such in each Order Form.
"User Content" mean text, pictures, audio, video, files, templates, fonts, logos, metadata and other content uploaded to or ** created on the Platform.
"Gelato" means the Gelato entity responsible for supplying the ordered Service, as identified as such in each Order Form.
"Gelato Group" means Gelato and its Affiliates.
"Order Form" means the order review and order confirmation that is presented to the Customer on checkout and confirmed in the order confirmation e-mail.
"Platform" means the cloud-based, digital Gelato Globe platform available through gelatoglobe.com (or indirectly available through a digital asset management (DAM) platform, where the provider of such platform has an agreement with both Gelato and the Customer).
"Products" mean physical (hard copy) brochures, business cards, booklets, posters, catalogues, flyers and other printed products.
"Service(s)" means Gelato's global printing services (including shipping services), available from time to time through the ** Platform, as further described on gelato.com/product.
"Terms" means these Gelato Globe Print Order Terms.
3. Ordering of Services
To order Services, the Customer must upload to, or select User Content available to it on, the Platform, and complete the checkout process in accordance with the instructions on the Platform. The Customer is responsible for the information provided, and the choices made, during the checkout process, including by ensuring the accuracy of the (i) selection of User Content to be printed, (ii) the number and format to be printed, (iii) the shipping recipient and shipping address, and (iv) the lawfulness of the order. The Customer shall carefully review the order, including the price, before placing an order. Gelato has no responsibility or liability for errors made by the Customer during the order process.
Upon placing an order, Gelato will present an order confirmation on the Platform and send a copy thereof to the email address of the person that places the order on behalf of the Customer. If the Customer places an order which, in Gelato's reasonable opinion and sole discretion, may violate any law, infringes the rights of a third party, or is inappropriate, obscene or immoral, Gelato may cancel the order. If Gelato nevertheless fulfils the order, Gelato has no responsibility for such violation or infringement.
Upon receipt of an order, Gelato will perform the Services, by facilitating printing and shipping the Products, as set out in the Order Form.
Gelato connects independent local printers in a global network. On the basis of the shipping address set out in the Order Form, Gelato allocates the order to a local printer based on geographical location, machine capabilities, available capacity, and other factors Gelato deems relevant. Orders that include more than one category of Products may be produced at different print facilities (such as due to capabilities, capacity and delivery address) and may therefore be delivered separately. Gelato will stipulate an estimated delivery time in the Order Form. Gelato will use all reasonable efforts to ensure that the Products are delivered within the estimated timeframe but shall not have any liability if the Products are delivered later. Gelato will notify the Customer as soon as it becomes aware of circumstances that may cause substantial delay.
The Products will be sent by regular post unless otherwise set out in the Order Form. Irrespective of the shipping method agreed in the Order Form, Gelato has the right to choose another carrier and carrier method, provided the quality and delivery time that the carrier and/or the method are of a similar quality and offer a similar delivery time. If the Customer has chosen tracked delivery, Gelato shall bear the risk of loss and damage to the Products during transportation. If the Customer has chosen non-tracked delivery, the order will be deemed delivered and title and risk of loss transferred to the Customer upon Gelato's delivery of the Products to any common carrier.
Gelato is responsible for customs clearance except for the countries where DDP (Delivery Duty Paid Incoterm) is not allowed. For those countries, the Customer assumes all risks and responsibility for the import clearance and duties.
The prices may vary from country to country. A price list for the Services (printing and shipping) in each country is available on the Platform. The actual prices for an order will be specified to the Customer upon placing the order and will be confirmed in the Order Form. Gelato will not be bound by any prices other than those set out in the Order Form.
6. Payment Terms
The Customer shall pay those fees for the Services as set out in the Order Form. Payment may be made by any of the payment methods available for each order (such as credit/debit card, PayPal account, invoice). Unless Customer selects payment upon receipt of invoice, payment must be made at the time the order is placed. If Gelato offers invoice as payment method, and the Customer choses such method, Gelato will invoice monthly in arrears. The Customer shall pay all invoices no later than 30 days after the invoice date. Late payments may be charged with interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the highest rate allowed by law. In the event of late payment, the Customer is responsible for paying any fees and costs related to collection.
The Customer is responsible for creating and maintaining the billing details on the platform. Should errors occur, the Customer will be charged a re-invoicing fee of EUR 50 per incident.
7. Return Policy
The Products are made specifically for the Customer upon order. Therefore, once an order is placed, it cannot be changed or cancelled unless otherwise set out in the Order Form. If the Customer discovers any defect, such as damage to the delivered Products, errors in the number or quantity of the delivered Products or lack of quality of the delivered Product not caused by lack of quality of the User Content, the Customer must, in order to avail itself the rights provided for below, notify Gelato´s customer service within 5 days after receipt of the Product. The Customer may be requested to provide photographic or other documentary evidence of the existence of a defective Product.
If Gelato agrees to, or the Customer can substantiate, the defect, and the defect is not due to the carrier of a non-tracked delivery, force majeure or other circumstances outside Gelato's control, then Gelato will, at its option, either provide the Customer with a reprint of the order to the extent required to remedy the defect or offer the Customer a refund for the defective Products.
The remedies provided for above are the Customer's sole remedies for any defective Product, and exclude, to the fullest extent permitted by law, any other remedy available to the Customer by law.
8. User Content
The Platform allows the Customer to upload, create and manage User Content. The Customer is responsible for ensuring that the uploaded User Content are suitable for the Customer's purposes, including but not limited to ensuring that the quality (resolution, color, lightning, etc.) is adequate for printing. If the Customer is uncertain of the quality of the final Product, then Gelato recommends that the Customer first place a small order, for the purpose of verifying the quality before placing a larger order.
Gelato is not obliged to monitor, pre-screen or edit the User Content uploaded to the Platform nor the Products produced. The Customer is solely responsible for the accuracy, substance, clarity, quality and legality of the User Content. Without limiting the foregoing, Gelato reserves the right to monitor and pre-screen User Content and to edit User Content that lack accuracy, substance, clarity or quality, including assets (logos / illustrations /
images / fonts) used in documents with the template upon upload to the platform.
Gelato may offer the Customer the right to perform pre-press as part of the Services, in which case Customer is responsible for approving the soft proof. For avoidance of doubt, the provision of such a Service does not limit Customer´s responsibility for User Content for which Customer remains fully responsible.
Provided any applicable law requires Gelato, its partners or sub-contractors to verify the certificates, licenses,
approvals or other documents owned by the Customer prior to their performance of a particular order, Gelato will contact the Customer for those required supporting materials. In case the Customer fails to provide those documents, or the documents provided are not sufficient according to the applicable law, Gelato is entitled to decline such order without any liability arising thereof.
Gelato may, with five days’ prior written notice to the Customer, delete a Customer’s User Content if Gelato reasonably believes that Customer is in breach of the Agreement, or Gelato may otherwise prevent the Customer's access to its User Content.
Gelato relies on partners and sub-contractors. The Customer accepts that Gelato may subcontract the Services, or any parts thereof, to any Gelato Group entity or third party. Notwithstanding any such sub-contracting, Gelato remains responsible towards the Customer for the fulfilment of the Agreement.
The Customer is responsible for all direct and indirect sales and other taxes, duties, local surcharges and the like ("Taxes") levied on the Customer by any applicable law in connection with the Services and for any liabilities or claims brought by any public or governmental authority upon the Customer's use of the Services.
If the Customer is required to make any deduction or withholding on account of any direct or indirect Taxes,
duties etc. in connection with any payment to Gelato, then the payment to Gelato shall be grossed up such that the payment received by Gelato is equal to the invoiced amount net of any such deduction or withholding. Gelato will, upon the Customer's request, provide a tax resident certificate in order to reduce or eliminate the withholding Tax.
The Customer shall defend, hold harmless and indemnify Gelato from and against all liabilities, costs and expenses, including reasonable legal fees and expenses, arising out of or related to the failure to remit withholding Tax from any payment from the Customer to Gelato or to comply with any other obligations it may have under applicable tax law. The Customer undertakes to provide Gelato with original receipts to evidence the deduction of withholding Tax and payment of any tax on behalf of Gelato to the corresponding public or governmental authority.
11. Intellectual property
The Platform consists of and contains intellectual property and other material, such as software, trademarks and graphics, that are proprietary to Gelato AS or its licensors. The Customer is not granted any rights to such property or material. The Customer shall not use the Platform for any other purpose than as expressly permitted by the Agreement. The Customer agrees not to copy, rent, lease, sell, distribute, reverse engineer or create derivatives of such property or materials. The Customer acknowledges that the Platform may consist of opens source software.
Gelato may make available through the Platform certain plug-ins that enable the transfer of files or other content to the Platform from specified third party software programs installed on the Customer's equipment. Gelato does not license or authorize the Customer's use of such third-party software. The Customer must have a separate agreement with the licensor of such third-party software to access and use it.
The Customer represents and warrants that it owns and/or has any and all required rights to upload, reproduce, create derivative works from, print, distribute and otherwise use the User Content as required for the use of the Services. The Customer grants Gelato a royalty-free, revocable, worldwide, non-exclusive and sub-licensable right to store, reproduce, create derivative works from, print, distribute and otherwise use the User Content for the sole purpose of providing the Services according to this Agreement.
Each party undertakes not to disclose, transfer or otherwise make available to any third-party information received or otherwise obtained in connection with the Agreement or the use of the Services, including but not limited to technical information, financial information and User Content. The confidentiality obligation shall however not apply to information that (i) is or becomes part of the public domain through no violation of the Agreement; (ii) at the time of disclosure was already known to the receiving party; (iii) is developed by the receiving party independently of the information received or obtained hereunder; or (iv) is rightfully received from a third party not subject to the duty of confidentiality. Further, the confidentiality obligation shall not prevent Gelato from disclosing, transferring or otherwise making available information to any Affiliates, officers,
shareholders, employees, directors or assignees, nor to any sub-contractors or licensors in connection with the provision of Services.
In no circumstances is either party liable to the other for any indirect, special, incidental or consequential loss or damage, including but not limited to loss of profit, revenue, business, contracts or anticipated savings or loss of or damage to data.
Without prejudice to the previous paragraph, each party's total liability per calendar year shall be limited to the greater of EUR 100,000 or the fees paid by Customer to Gelato in the previous calendar year.
The above limitations of liability shall not apply to any indemnity obligations set out in this Agreement, or in the event of wilful misconduct or gross negligence. Other than the return rights provided in paragraph 7, Gelato makes no warranties with respect to the Services,
including any implied warranties of merchantability or fitness for a particular purpose. Gelato, together with its officers, shareholders, employees, agents, directors, Affiliates, assignees, sub-contractors and licensors, is not responsible for any costs, losses or damages caused by (i) force majeure, third party's negligence or other circumstances outside Gelato's control; (ii) lack of, delay of, or interruption of access to the Platform, (iii) misdelivery of Products not ordered with tracking; (iv) lack of accuracy, substance, clarity or quality of the User Content; or (v) breach of the Agreement, inappropriate or unauthorized use of the Platform or the Services by the Customer or any individual authorized by the Customer to use the Platform or the Services.
In the event the Customer uses the Services through a digital asset management (DAM) platform, the Customer cannot claim any liability against Gelato to the extent the Customer may claim liability for the same loss or damage against the provider of such platform.
The Customer is solely responsible for (i) handling any third-party claims alleging that the use of User Content infringes a third party's right; and (ii) any claims or investigations from government or authorities alleging that the User Content violates applicable law. The Customer shall indemnify and defend Gelato and its officers, shareholders, employees, agents, directors, Affiliates, assignees, sub-contractors and licensors against any reasonable costs or losses (including but not limited to damages, fines and legal costs) incurred in connection with any claim or investigation of any kind made by any third party arising from or related to (a) an allegation that the use of the User Content infringes a third party's rights or violates applicable law, (b) Customer’s or its Affiliates’ use of the Platform in a manner not authorized by this Agreement, or (c) any other breach by this Agreement by Customer or its Affiliates. Gelato is solely responsible for handling any third-party claims alleging that the use of the Platform or the Services in accordance with the Agreement infringes a third party's right. Gelato shall indemnify and defend the Customer against any reasonable costs or losses (including but not limited to damages, fines and legal costs) incurred by the Customer in connection with any claim or investigation of any kind made by any third party arising from or related to (a) any claim that the use of the Platform or the Services in accordance with the Agreement infringes a third party's rights. In the event that any third party asserts a claim with respect to any matter for which a Party ("Indemnified Party") is entitled to indemnification pursuant to the Agreement, such Indemnified Party shall (i) promptly notify the other party (the "Indemnifying Party") in writing of the claim, (ii) allow the Indemnifying Party to control, and cooperate with the Indemnifying Party in the defence, (iii) not enter into a settlement without the Indemnifying Party's prior written consent, and (iv) use reasonable efforts to limit the costs and losses. In each case the Indemnifying Party shall notify the relevant third party that the relevant claims or investigations solely are the Indemnifying Party's responsibility, and not the responsibility of the indemnified party.
15. Governing Law and Dispute Resolution
The Agreement shall be governed by the laws of the country in which Gelato is incorporated. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Any disputes arising out of or in connection with the Agreement shall be finally settled by arbitration in accordance with the International Chamber of Commerce (ICC) Rules of Arbitration. The place of the arbitration shall be in the city in which Gelato has its place of business. Unless otherwise agreed, the language of the arbitration shall be English. This arbitration clause shall not prevent Gelato from taking legal action before ordinary courts in the Customer's jurisdiction for the collection of payment under the Agreement or enforcement of Gelato's intellectual property rights.
If any provision in these Terms is invalid or unenforceable, then the remaining portions of this Agreement will remain in full force and effect.
17. No agency
No agency, partnership, joint venture or franchise relationship is implied, intended or created by these Terms.
Gelato may assign its rights or delegate it obligations under the Agreement, or any parts thereof, to any Affiliate or third party. Notwithstanding the generality of the foregoing, Gelato may assign the right to invoice or otherwise claim payment due under the Agreement. Customer may not assign this Agreement without Gelato’s prior, written consent (including by way of merger, asset sale, stock sale, or other reorganization).
19. Entire Agreement
These Terms, together with the Order Form and, if applicable to Customer, the Gelato Globe Subscription Form, Subscription Terms and the Data Processing Terms are the entire agreement between Gelato and Customer with respect to the subject matter of this Agreement and supersede all prior and contemporaneous oral or written agreements with respect to such subject matter.
21. Electronic Communication
The Customer agrees that any notices, agreements, disclosures, or other communications that it receives electronically will satisfy any legal communication requirements, including any requirement that those communications be in writing.
22. Contact Information
The Customer may contact Gelato by sending correspondence to that address or by emailing us at firstname.lastname@example.org. The Customer can access a copy of these Terms by clicking here: Gelato Globe Order Terms