Gelato API Terms of Use

Last Updated Date: 01 October 2021

These Terms apply to your use of the Gelato API. These Terms include and are subject to any Order Form, Customer Account, Service Specific Terms, data processing agreement, appendices and other agreement that we may agree to regarding the Gelato API.

By using the Gelato API, these Terms are deemed accepted by you on behalf of your organization (as identified in the Order Form and/or in connection with creating a Customer Account). If a person takes the Gelato API into use by creating a Customer Account, or signs any Order Form, data processing agreement, appendices and other agreement with us regarding the Gelato API, such person represents and warrants that he or she has the authority to bind your organization.

These Terms may be amended from time to time by posting the revised Terms on our website or by communicating them to you. By continuing to use the Gelato API after such notification, you accept the revised Terms. We will not make amendments that materially affect your rights or obligations unless approved by you or unless you have been given the right of termination.

1. DEFINITIONS

API: Application programming interface.

Application: Your website, app or other online interface (created independently or on an E-commerce Platform) on which you allow End Customers to upload, create and/or customize User Content, and to print such User Content.

Customer (or you): The legal entity to which Gelato has granted access to the Gelato Platform.
Customer Account: A unique profile created for Your organization on the Portal and which is signed in by a person representing your organization.

E-commerce Platform: A platform for creation of an Application, provided by a third party with whom we have a partner agreement concerning integration of the Gelato API.

Gelato (or we): Gelato AS, Norwegian company having its principal place of business at Dronning Eufemias Gate 8, 0191 Oslo, Norway.

Gelato API: Our proprietary API, other APIs and/or associated software development kits (SDKs) that enables the exchange of information between your Application and the Gelato Platform. This also includes access to the Gelato API portal.

Gelato Live API key: An API key created specifically for you to access the Gelato Platform, that enables you to place live orders. This also includes live orders placed directly in the Portal before Gelato Live API Key generation.

Portal: The web-based portal available at https://developers.gelato.com providing access to the Gelato Platform.

Gelato Platform: Our server platform on which we manage our network of printers and distributors, as well as the receipt and handling of Orders communicated through the Gelato API.

End Customer: The person or entity that places an Order on your Application.

Order: A request on your Application to have User Content printed and Products distributed and delivered by Gelato.

Order Form: A Gelato API order form that may be entered into between Gelato and You, governing commercial and other specific matters regarding Your use of the Gelato API.

Products: Printed materials that incorporate User Content, such as pictures, cards, brochures, booklets, posters, catalogues, flyers, packaging, merchandise, apparel, frames and hangers.

Services: Our service of making available the Gelato API, as further described in clause 2, our implementation services, our service of printing and shipping of Products, as further described in clause 3, and our support services, as further described in clause 4.

Service Specific Terms: Shall have the meaning as defined in clause 3.

Terms: Refers to this agreement (the Gelato API Terms of Use).

User Content: Text, pictures, files, templates, fonts, logos, metadata and other content.

2. CUSTOMER ACCOUNT

To access and use the Services, you will be asked to create a Customer Account. As part of the Customer Account creation process, the person representing your organization will be asked to provide an email address, create a password, and verify that this is provided by a physical person. Until the payment or billing method is registered, your access to the Services will be limited.

If you, in connection with the creation of a Customer Account, are presented with commercial terms for the use of the Service, the commercial terms shall be deemed accepted upon the creation of such Customer Account.

You are responsible for the accuracy and completeness of the information provided through the Gelato API, including Customer Account creation, by providing true, accurate, current and complete information as requested during the Customer Account creation process.

3. SUBSCRIPTION

To access and use the Services, you will be asked to establish a core subscription with us. Our core subscription comes in various price plans. The chosen price plan will determine the scope (such as number of users), functionality (such as reports) and prices (such as discounts) available to you, as further described in the Portal.

You may subscribe to add-ons that we may make available from time to time (such as additional number of users). Such add-ons, if any, are only available if you have a core subscription with a payable price plan.

You may also subscribe to third party apps that we may make available from time to time (such as design apps and image editing apps). Such third party apps, if any, are only available if you have an active core subscription with a payable price plan.

The term of a subscription (core subscription, add-ons and third party apps) is monthly, unless we have agreed on an annual term. The term is binding. You may cancel any subscription with 30 days' notice before the end of the term. Unless cancelled before such time, the subscription is automatically renewed for another term. You may upgrade a subscription at any time, with immediate effect. You may downgrade a subscription with effect from the next term. If you cancel the core subscription, or you downgrade it to a free payment plan, once such cancellation or downgrade is effective, you will no longer have access to add-ons and/or third party apps.

Any subscription (including the various payment plans), add-ons and third party apps may be offered under particular terms and conditions applicable for the subscription, such as with respect to fees ("Service Specific Terms"). Such Service Specific Terms will be communicated to you prior to the subscription.

4. LIMITED RIGHT TO USE THE SERVICES

Subject to your creation of a Customer Account, establishment of a subscription, and your compliance with these Terms, you are granted the non-exclusive right to use the Gelato API for the sole purpose of integrating your Application with the Gelato Platform to enable the exchange of information concerning Orders (such as the User Content to be printed, shipping options, and order status).

We may at any time add and remove features and functionality of the Gelato API (including the Gelato Platform). It is your responsibility to comply with instructions issued by us regarding the Gelato API, including instructions on supported formats. We may update these instructions from time to time, such as communication by email or by posting them on our Portal or our website. Updates that materially affect your use of the Gelato API will be communicated by email with at least 30 days’ notice. You acknowledge that we may not duly complete Orders if your Application does not satisfy our instructions.

You are responsible for following the Gelato file requirements as presented in this link; https://apigelato.zendesk.com/hc/en-us/articles/360010094399-Design-requirements, and for the accuracy, substance, clarity, quality (such as resolution, color, lighting) and lawfulness of the User Content, and for the accuracy of the choices made during checkout (such as the items, number and format to be printed, the shipping recipient and shipping address). We are not obliged to verify the data (such as to verify the shipping address). However, we reserve the right, but are not obliged to, screen the User Content to be printed and alert You if we find failures.

If we, through the Gelato API, receive Orders that, in our reasonable opinion, may violate any law from time to time, infringes the rights of a third party, or is inappropriate, obscene or immoral, we may reject the Order. If we nevertheless fulfill the Order, Gelato has no responsibility for such violation or infringement.

We may monitor your use of the Gelato API for billing purposes, to ensure the quality of and to improve our Services, and to verify your compliance with these Terms. We may suspend access to the Gelato API without notice if we reasonably believe that you are in breach of these Terms (including in the event of non-payment of an invoice with more than 30 days), in violation of applicable laws and regulations, or if we consider there to be a risk of loss of reputation for us.

5. PRINTING, SHIPMENT AND DELIVERY SERVICES

Upon receipt of an Order through the Gelato API, Gelato will facilitate printing of the User Content and shipping of the Products to your End Customer, as requested in the Order.

We connect independent local printers in our global network. On the basis of the shipping address set out in the Order, we allocate the order to a local printer based on geographical location, machine capabilities, available capacity, and other factors we deem 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.

Through the Gelato API, we will stipulate an estimated delivery time. We will use all reasonable efforts to ensure that the Products are delivered within the estimated timeframe but shall not have any liability towards you or the End Customer if the Products are delivered later. We will notify you as soon as we become aware of circumstances that may cause substantial delays.

The Products will be sent by regular post unless otherwise agreed for each Order. Irrespective of the shipping method, we have 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 tracked delivery is chosen for the Order (if available), we shall bear the risk of loss and damage to the Products during transportation. If non-tracked delivery is chosen for the Order, the Products will be deemed delivered and title and risk of loss transferred to you upon our delivery of the Products to any common carrier.

We are not obliged to find the correct address for the delivery. If we were not provided with the correct address, and there are multiple residents on that address, we will use reasonable endeavors to deliver, but cannot guarantee the delivery of the Products to the correct recipient. You are responsible for performing customs clearance of the Products and for payment of the customs (if any), please further refer to clause 9.

6. SUPPORT SERVICES

We shall have no direct agreement with End Customers, nor provide any support or communicate directly with the End Customers unless otherwise agreed with you.

We shall provide technical support to you to troubleshoot issues related to the Gelato API. Our order and technical support are available by email on the following email address: apisupport@gelato.com, 24/7. The language of the support will only be available in English.

We otherwise agree to provide reasonable assistance to you and to cooperate with you (and third parties, as requested by you) in a timely manner to resolve issues with Orders (including the shipment of Products).

If in connection with support or otherwise, you provide us with ideas, comments, suggestions or other feedback relating to our Service, all in that feedback, and anything created as a result of that feedback, are our sole property, and we may use and disclose it for any purpose.

7. SERVICE LEVELS

We shall use all reasonable efforts to maintain the availability of the Gelato API (including the Gelato Platform). We do not guarantee that it will be available, uninterrupted or error-free. If you experience downtime, you shall notify us without undue delay, and you shall provide all reasonably requested co-operation in investigating and resolving any such downtime.

Your API calls are subject to a standard daily limit of 5000 per day, unless otherwise agreed. API calls exceeding the agreed daily limit will not be responded to. You are liable for any downtime and any costs and losses caused by API calls that exceed the agreed maximum rate.

We will use all reasonable efforts to avoid having to take the Gelato API (including the Gelato Platform) offline for executing planned maintenance. Should under exceptional circumstances such maintenance nevertheless prove necessary, we will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected potential Orders. Should under emergency situations (e.g. in case of force majeure event) unplanned maintenance be necessary that requires the Gelato API (including the Gelato Platform) to be taken offline, we will use resources to keep the required downtime to the absolute minimum.

8. RETURNS

You acknowledge that the Products are personalized and made specifically for each Order. Once an Order is placed, it cannot be changed or canceled unless otherwise communicated by us to you through the Gelato API for the specific Order.

You acknowledge that the Products, when printed, may vary from the User Content as displayed on-screen, such as due to how computers display colours. Such deviation between on-screen User Content and physical Products that are not due to printing errors shall not be deemed a defect.

If there are defects discovered, 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, you should provide us with photographic or other documentary evidence of the existence of a defective Product. If we have not received from you a complaint in writing within 15 days after receipt, we shall have no liability for any defect.

If we agree, or you can substantiate, that there is a defect and that it is not due to the carrier of a non-tracked delivery, force majeure or other circumstances outside our control, then we will, at our option, either provide you with a reprint of the order to the extent required to remedy the defect or offer you with a refund for the defective Products.

The remedies provided for above are your sole remedies for any defective Product, and exclude, to the fullest extent permitted by law, any other remedy available to you (including the End Customer) by law.

9. TERM AND TERMINATION

These Terms become effective on the date that you create a Customer Account (or sign an Order Form, of earlier). These Terms are effective until terminated in accordance with this clause.

Either party may terminate these Terms and close your customer account(s) for any reason at any time with written notice to the other party unless otherwise stated in the Order Form, however these Terms will not terminate before all valid subscriptions, as set out in clause 3, is expired. We may terminate any subscription with a notice period similar to your notice period for cancellation of the subscription.

A party may terminate these Terms if the other party is in material breach of these Terms and fails to cure that breach within 30 days after receipt of written notice.

Upon termination, you will have no further rights to use the Services. Unless we terminate due to your material breach, we will print and ship Products based on Orders placed before the date of termination.
The following sections will survive termination: Fees and Payment, Taxes, Intellectual Property, Confidentiality, No Warranties, Limitation of Liability, Indemnification, Governing Law and Dispute Resolution, Severability, Entire Agreement, and Notice and Contact Information.

10. FEES

You are responsible for and shall pay all fees for our Services, including any subscription fees, any transaction fees and any other additional fees as may be agreed.

Any subscription fee (for core subscription, any add-on and any third party app, unless free of charge) shall be payable at the amount (i) communicated to you prior to subscribing, or (ii) agreed in advance between us, such as in the Order Form. In the event of a discrepancy, (i) prevails (ii).

Any transactional fee, such as for any Order, shall be payable at the amount (i) communicated through the Gelato API upon each Order, (ii) as agreed in advance between us, such as in the Order Form; or (iii) as set out in the price list found at the Portal. In the event of a discrepancy, the (i) prevails (ii) and (ii) prevails (iii).

All amounts stated or agreed to be paid by you to us for our Services are exclusive of any value added tax (VAT) or similar indirect tax as further specified in the fifth paragraph in clause 9 (Taxes) below.

11. PAYMENT TERMS

Payments shall be made by any of the current payment methods as available from time to time and authorized by Gelato (such as a valid credit/debit card, PayPal account or invoice). You represent, warrant, and undertake that all details you provide to us for the purpose of purchasing our Services will be correct; that the credit charge 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.

Subscription fees are payable in advance and will be billed monthly or annually (depending on whether the subscription is monthly or annually). Fees for any Orders, and any other transactional fees, will be charged from time to time in arrears at our discretion. We reserve the right to obtain validation of your credit charge or debit card details before accepting your Order. One-time payments, such as payment for implementation fees as agreed in the Order Form, will be billable once both parties have signed the Order Form, unless otherwise agreed.

We will continue to charge applicable fees through the applicable payment method until the Services are terminated, and any and all outstanding fees have been paid in full. If we are unable to process payment of fees, we will make a second attempt to process payment using any authorized payment method. If the second attempt is not successful, we will make a final attempt. If our final attempt is not successful, we may, however no earlier than 7 days from the original due date, suspend and revoke access to your Customer Account and the Services. Your Customer Account will be reactivated upon your payment of any outstanding fees, plus the fees applicable to your next billing cycle (if any). You may not be able to access your Customer Account and the Services during any period of suspension. If the outstanding fees remain unpaid for 30 days following the date of suspension, we reserve the right to terminate your Customer Account and these Terms.

If you have authorized invoice as your payment method, subscription fees will be invoiced monthly in advance, whereas fees for any Orders, and any other transactional fees, will be invoiced semi-monthly in arrears, starting from the date when you have signed the Order Form. You shall pay all invoices no later than 15 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, you are responsible for paying any fees and costs related to collection.

If we have agreed on a non-refundable prepayment amount by invoice, and the total billing amount (Includes products, shipping, and taxes) reaches 75% of this amount, a new prepayment at an amount equal to the previous prepayment will be due. Gelato reserves the right to increase the prepayment amount at any time. Any funds added to our wallet function can be used to pay for products, shipping, incl taxes and you can withdraw any unused funds.

Gelato is free to review and revise any prices and discounts. For Orders, and any other transactional fees, the new prices or discounts fees will apply after they have been communicated. For subscriptions, the new prices or discounts shall be communicated with at least 30 days' notice, and they will then apply to subsequent subscription terms

You determine the prices to the End Customers.

12. TAXES

Except as otherwise stated in this Clause 9, you shall bear and be liable for all direct and indirect taxes, including, but not limited to, corporate income taxes, payroll taxes, social contributions, excise duties, turnover taxes, customs duties, levies, duties, charges, stamp duties and all similar taxes and charges, including penalties, interest, tax deductions, surcharges, and imposts of any nature (hereinafter “Taxes”) that are assessed or levied on you by any public or governmental authority arising from or consequent to these Terms and shall, at your own expense, pay all such taxes in accordance with applicable law from time to time. You shall be liable for and defend, indemnify us and hold us harmless from and against any and all indemnified costs arising out of or in connection with any assessment or levy made in respect of any of the aforesaid Taxes.

We shall bear and be liable for all Taxes that are assessed or levied on us by any public or governmental authority, whether Norwegian or non-Norwegian, arising out of or in connection with these Terms. We shall be liable for and defend, indemnify and hold harmless you, your affiliates and subcontractors from and against any and all costs arising out of or in connection with any assessment or levy made in respect of any of the aforesaid Taxes.

You shall withhold from any payment to us such sums that represent any Taxes that you are obliged to withhold in accordance with applicable law and regulations from time to time where you are tax resident. You shall settle such Taxes with the relevant and appropriate authorities in accordance with applicable law and regulations from time to time and shall upon request provide us with proof of such settlement without delay. In the event that we are eligible for any reduced rate of withholding tax, we will provide you with appropriate documentation required under applicable law from time to time to justify such reduced rate before any payment is made under these Terms. If applicable, you shall request such documentation from us prior to making the withholding. In the absence of such documentation the full rate of withholding tax will apply. You shall defend, hold harmless and indemnify us, our affiliates and subcontractors from and against any and all indemnified costs arising out of or in connection with your failure to withhold from and settle any Taxes on any payment to us or to comply with any other obligation you may have under applicable law from time to time. You shall provide us with tax receipts or other proof of payment for any indemnified costs.

Notwithstanding your obligation to withhold Taxes pursuant to the third paragraph in this clause, if any Taxes are levied against and amounts withheld from payments to us, the payment to us shall be grossed up so that the payment received by us is equal to the invoiced amount net of withholding tax (plus any agreed additions, including but not limited to VAT or similar indirect tax, including but not limited to GST and sales tax, added to the price, in accordance with the fifth paragraph in this clause).

All amounts stated or agreed to be paid by you to us under the Terms are exclusive of any value added tax (VAT) or similar indirect tax, including but not limited to GST and sales tax, and such indirect tax, where applicable, shall be payable by you in addition to the amounts stated or agreed, i.e. we shall charge VAT or similar indirect tax to you at the rate required under applicable law from time to time in addition to the amounts stated or agreed.

Where goods and/or services are required to be imported, unless otherwise agreed upon, you shall be the importer of record and are responsible for the import customs clearance for all materials, and shall in that capacity be solely responsible for all import formalities and payment of any import related Taxes, duties and fees, including but not limited to import VAT, import GST, customs duties, excise duties or import duties which may be incurred or payable in connection with the import of the materials in connection with performance of your obligations under these Terms and shall have no recourse towards us for any import related Taxes, duties and fees, including but not limited to import VAT, import GST, customs duties, excise duties or import duties which may be incurred or payable in connection with the import of the materials.

You shall indemnify us for any increase in Taxes arising out of any change in law. Change in law is defined as new law or regulation, including tax regulation, tax resolution, tax decree or similar, or amendment or change in interpretation of an existing law or regulation, enacted and coming into effect after the agreement was entered into between you and us, that we were not aware of before entering into the contract.

This clause 9 shall apply for as long as any public or governmental authority may impose Taxes on us which you are liable for under this clause 9, even if the Terms as such is terminated pursuant to clause 7 of these Terms.

13. SECURITY

You agree to protect the Gelato API and not to make it available to any third party.

You are responsible for maintaining the confidentiality of all of the usernames and passwords that you may have received from us to enable your access to the Gelato Platform. You are responsible for any activity that takes place with these usernames and passwords.

We shall both implement and maintain appropriate technical and organisational security measures to protect the data submitted through the Gelato API against unauthorised or unlawful access or use, and to protect such data against accidental or unlawful destruction or accidental loss, damage, alteration or unauthorised disclosure.

The Application shall not represent a risk to the operation of the Gelato Platform. You must protect the Application against unauthorised access and external threats (such as viruses).

You must not create accounts through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper. With the exception of accessing RSS feeds, you will not use any robot, spider, scraper or other automated means to access the Gelato Platform or our Services for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Gelato Platform or our Services; or (iii) bypass any measures may be used to prevent or restrict access to the Gelato Platform or our Services. We may without warning limit the use of, or suspend your access to the Gelato API (including the Gelato Platform) if we reasonably believe that the Application may entail a risk to us or our other customers.

You agree to promptly and no later than 48 hours after becoming aware of it, notify us, of any security breach related to the Application that imposes or is likely to impose a risk of unauthorised access or alteration of the data received through the Gelato API. The notice shall include a description of the nature of the security breach including where possible, the categories and approximate number of data subjects concerned, and the categories and approximate number of personal data records concerned.

14. YOUR OTHER RESPONSIBILITIES

You are solely responsible for your Application and the Application's integration with the Gelato API (including the Gelato Platform). In no circumstances will we be responsible for making any adaptations or modifications to the Gelato API (including the Gelato Platform) in order to facilitate such integration.
You are solely responsible for ensuring that the Application is safe and free of defects in operation and conception, and that it complies with applicable laws, regulations and third party rights.

You shall refrain from using the Gelato API for any other purposes than as set out in these Terms.

15. INTELLECTUAL PROPERTY

The Gelato API and the Gelato Platform, and any documentation concerning such, consist of and contain intellectual property and other material, such as software, trademarks, graphics, texts and functionality, that are proprietary to us or our licensors. You or your End Customers are not granted any rights to such property or material. You agree not to copy, rent, lease, sell, distribute, reverse engineer or create derivatives of such property. You further agree not to, and not to attempt to, modify, alter, tamper with, repair, or reverse engineer any such property.

Gelato may make available certain plug-ins that enable the exchange of User Content and other data between your Application and the Gelato Platform from specified third party software programs installed on your equipment. Gelato does not license or authorize you to use such third-party software. You must have a separate agreement with the licensor of such third-party software to access and use it.

You acknowledge that the Gelato API and the Gelato Platform may consist of open-source software.
You represent and warrant that you or your End Customers own and/or have 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. You grant to us a limited, 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 these Terms.

Gelato complies with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Platform, you may contact Gelato's Designated Agent at the following address:

Gelato USA LLC
ATTN: Legal Department (Copyright Notification)
955 Massachusettes Avenue, #408, Cambridge, MA 02139
Email: copyright@gelato.com

Any notice alleging that materials hosted by or distributed through the Platform infringe intellectual property rights must include the following information:

• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
• a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
• a description of the material that you claim is infringing and where it is located on the Platform;
• your address, telephone number, and email address;
• a statement by you that you have a good faith belief that the use of those materials on the Platform is not authorized by the copyright owner, its agent, or the law; and
• a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Gelato will promptly terminate without notice the accounts of Customers that are determined by Gelato to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had Digital Assets or other materials removed from the Platform at least twice.

If the Customer provides input and suggestions regarding problems with or proposed modifications or improvements to the Services and/or Platform (“Feedback”), then Customer hereby grants Gelato an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Services and Platform and create other products and services.

16. CONFIDENTIALITY

Each party undertakes not to disclose, transfer or otherwise make available to any third-party information received or otherwise obtained in connection with these Terms 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 these Terms; (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 us from disclosing, transferring or otherwise making available information to any affiliates, officers, shareholders, employees, directors, advisors, or assignees, nor to any sub-contractors or licensors in connection with the provision of Services.

17. NO WARRANTIES

We make no warranties with respect to the Services, including any implied warranties of merchantability or fitness for a particular purpose. We, together with our 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 our control; (ii) lack of, delay of, or interruption of access to the Gelato API Platform, (iii) miss-delivery of Products not ordered with tracking; (iv) lack of accuracy, substance, clarity or quality of the User Content; or (v) breach of these Terms, inappropriate or unauthorized use of the Services by you, any individual authorized by you to use the Services, or any End Customer.

18. E-COMMERCE PLATFORM

If You have established your Application on an E-commerce Platform, the rights and obligation between You and the provider of such platform is exclusively governed by the terms and conditions agreed between you and such provider. We shall have no responsibilities in such respect. All claims that you may have relating to the E-commerce Platform must be directed to the provider of such platform.

For the sake of good order, note that, in relation to the provider of the E-commerce Platform; (i) the developer (as defined in the terms and conditions for the E-commerce Platform) is solely responsible for the Application; (ii) the provider of the E-commerce Platform is not liable for any fault in the Application or any harm that may result from its installation or use; (iii) except where expressly stated by the provider of the E-commerce Platform, the provider cannot provide assistance with the installation or use of the Application; and (iv) the developer is solely responsible for any liability which may arise from Your access to or use of the Application, including: (A) the development, use, marketing or distribution of or access to the Application, including support of the Application; or (B) the developer's access, use, distribution or storage of data relating to You or the Application.

19. LIMITATION OF LIABILITY

You are solely responsible vis-à-vis the End Customers. We shall have no liability whatsoever against the End Customers. We have no responsibility or liability for errors made by the End Customer during the order process.

In no circumstances shall our liability to you extend your liability against your End Customers. In no circumstances is any of us be 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 paragraphs, each party's total liability per calendar year shall be limited to the fees paid by you to us in the previous calendar year.

The above limitations of liability shall not apply to any indemnity obligations set out in these Terms, or in the event the liability is caused by willful misconduct or gross negligence.

20. INDEMNIFICATION

You are solely responsible for (i) handling any third-party claims alleging that the use of User Content, including our printing and shipment of Products following an Order, infringes a third party's intellectual property or other rights (including without limitation copyrights, trademarks, rights of publicity and rights of privacy); and (ii) handling any claims or investigations from government or authorities alleging that the User Content violates applicable law. You shall indemnify and defend us and our officers, shareholders, employees, agents, directors, affiliates, assignees, sub-contractors and licensors against any losses, costs, liabilities and expenses (including but not limited to damages, fines and reasonable 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 intellectual property or other rights (including without limitation copyrights, trademarks, rights of publicity and rights of privacy)or violates applicable law, (b) you or anyone that you are responsible for use the Services in a manner not authorized by these Terms, or (c) any other breach by these Terms by you or anyone you are responsible for.

Otherwise, we are solely responsible for handling any third-party claims alleging that your use of our Services in accordance with these Terms infringes a third party's rights. We shall indemnify and defend you against any reasonable costs or losses (including but not limited to damages, fines and legal costs) incurred by you in connection with any claim or investigation of any kind made by any third party arising from or related to any claim that your use of our Services in accordance with these Terms 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 these Terms, the indemnification is subject to that the Indemnified Party (i) promptly notifying the other party (the "Indemnifying Party") in writing of the claim (provided that failure to provide prompt notification will not relieve the Indemnifying Party of its obligations unless such failure materially prejudices the defense), (ii) allowing the Indemnifying Party to control the defence and cooperating with the Indemnifying Party, (iii) not entering into a settlement without the Indemnifying Party's prior written consent, and (iv) using reasonable efforts to limit the costs, losses, liabilities and expenses. 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.

21. PRIVACY

Where we process personal data while performing the Services, we will act as processor under the direction and responsibility of you, and our Data Processing Terms applies. You shall comply with the personal data protection laws of your country of establishment and of those countries in which you offer your goods and/or services from time to time, in particular when processing and sending personal data to us in the context of using the Services. We shall both implement appropriate technical and organizational measures to protect personal data against misuse. We are not obliged to store or backup data received from you through the Gelato API.

22. MARKETING

You agree to be identified as a recipient of the Services and to have your name and/or logo used by us and our affiliates in sales presentations, marketing materials and press releases. You also agree to consider Gelato-sponsored webinars and speaking engagements as may be invited by us - the participation, timing and content of which to be mutually agreed. You will not make any statement regarding the use of our Services which suggests partnership with, sponsorship by, or endorsement by us without our prior written approval. Unless otherwise approved by us in writing, you will not use or refer to our name, trademark, logo, domain name or any other of our distinctive brand features.

23. SUBCONTRACTING AND ASSIGNMENT

We may subcontract any parts of our rights or obligations under these Terms, such as to printers and distributors. We remain responsible towards you for our subcontractors’ performance. We may assign our rights and obligations, or any parts thereof, to any affiliate or third party. Notwithstanding the generality of the foregoing, we may assign the right to invoice or otherwise claim payment due under these Terms.

You may not assign (including by way of merger, asset sale, stock sale, or other reorganization) these Terms without our prior written consent, not to be unreasonably withheld.

24. GOVERNING LAW AND DISPUTE RESOLUTION

These Terms shall be governed by the laws of Norway. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

Any disputes arising out of or in connection with these Terms 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 the city in which we have our place of business. Unless otherwise agreed, the language of the arbitration shall be English. This arbitration clause shall not prevent us from taking legal action before ordinary courts in your jurisdiction for the collection of payment under these Terms or for the enforcement of our intellectual property rights.

25. SEVERABILITY

If any provision in these Terms is invalid or unenforceable, then the remaining portions of these Terms will remain in full force and effect.

26. ENTIRE AGREEMENT

These Terms, together with the any Order Form, Online Sign-Up, data processing agreement, appendices and other agreement between us regarding the Gelato API, form the entire agreement between us with respect to the Gelato API and supersede all prior and contemporaneous oral or written agreements with respect to such subject matter.

27. NOTICES AND CONTACT INFORMATION

When these Terms stipulate “written notice”, email notice suffices.
You may contact us by sending correspondence to that address or by emailing us at legal@gelato.com. Notices may be sent to: Gelato AS, Dronning Eufemias Gate 8, 0191 Oslo, Norway.