GELATO B2B SUBSCRIPTION TERMS

Last Updated Date: July 7, 2021

1. General

These Terms form an integrated part of the Gelato Subscription Form (“Subscription Form”). In the event of conflict, the Subscription Form shall prevail.
The Terms may be amended from time to time. The Terms posted on the Platform at the time of the signing of a Subscription Form shall apply to the subscription ordered under that Subscription Form.

The person who accepts the Subscription Form on behalf of the entity, organization, or company being the Customer confirms that he or she has the authority to bind the Customer and agrees to be bound by the Agreement on behalf of the Customer.

2. Definitions

"Agreement" shall have the meaning as defined in the Subscription Form.
"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" shall have the meaning as indicated in the Subscription Form.
"User Content" means text, pictures, audio, video, files, templates, fonts, logos, metadata and other content
uploaded to or created on the Platform.
"Effective Date" means the effective date set out in the Subscription Form.
**"Gelato"**shall have the meaning as indicated in the Subscription Form.
"Gelato Group" means Gelato and its Affiliates.
"Platform" means the cloud-based, digital Gelato platform where Customers are able to order products in the Gelato Portfolio and products in the portfolio of third parties.
"Service(s)" means the provision of access to the Customer's account on the Platform and to the software-as-a-service functionality available thereon from time to time.
"Terms"; means these Gelato Subscription Terms.

3. Subscription

By entering into the Agreement, the Customer subscribes to the Platform and agrees to these Terms. The subscription enables the Customer to upload, store and manage User Content on the Customer's account on the Platform and to use functionality thereon to order print services, as well as to allow its Affiliates, and third parties acting on behalf of the Customer or any of its Affiliates, to do so. The Customer remains liable to Gelato for any action or omission occurring on or through the Customer's account on the Platform. Each order and delivery of print services by Gelato will be subject to a separate agreement entered into on the then-current Print Order Terms.. The Customer shall be liable for the fulfilment of any such separate agreement for the order, delivery and payment of print services. The Customer may on the Platform also be able to order printing and shipment of products offered by third parties. This will be governed by a separate contract between the Customer and such third party. Gelato does not assume any responsibility for the printing and shipment of such products, including with respect to issues with respect to quality, quantity or delays in delivery.

4. Term

The initial term of the Agreement is 12 months, beginning on the Effective Date. The term will be automatically renewed for additional 12-month periods unless either party provides written notice of non-renewal at least 90 days
prior to the end of the then-current term. Either party may terminate this Agreement, including the Subscription Form, if the other party is in material breach
of the Agreement and fails to cure that breach within thirty days after receipt of written notice. Upon termination or expiration of this Agreement, (a) all rights and licenses granted by Gelato to Customer will cease immediately; and (b) Customer will have a reasonable opportunity to export any stored data. Gelato will have
no liability for deleting User Content or any other stored data within a reasonable time following termination unless otherwise follows from the Data Processing Terms. The following sections will survive termination of this agreement: Fees & Payment, Intellectual Property, Confidentiality, Liability and Limitation of Liability, Indemnification, Disclaimer, Governing Law and Dispute Resolution, Severability, Entire Agreement, and Electronic Communications.

5. Fees and Payment Terms

The Customer shall pay those fees set out in the Subscription Form.
Unless otherwise agreed in the Subscription Form, Gelato will invoice the fees set out in the Subscription Form yearly in advance. 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 not entitled to set-off any amount, whether under the Agreement or otherwise, against fees payable for the Services. If we have agreed in the Subscription Form on a non-revocable prepayment amount for the 12 months contract period, the Customer gets credit available to use for print orders. These credits can be allocated to more billing entities by using the prepaid print credit functionality on the platform. The prepayment amount may be made by any of the current payment methods as available from time to time (such as credit/debit card, PayPal account, invoice).

6. Marketing

Customer agrees to be identified as a recipient of services and to have their name and/or logo used in sales presentations, marketing materials and press releases. Gelato will post a notification on social channels about the contract signing. Content to be approved by the customer. Customer also agrees to consider Gelato-sponsored webinars and speaking engagements as may be invited by Gelato - the participation, timing and content of which to be mutually agreed upon between Parties.

7. Subcontracting

Gelato relies on partners and sub-contractors, including for the hosting of the Platform. The Customer agrees 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 to the Customer for the fulfilment of the Agreement. Gelato relies on a third party system integrator to perform certain services as subcontractor of Gelato relating to the Platform, such as setup, implementation and support. For the avoidance of doubt, if Customer engages such third party system integrator to perform other services, such as integration services or consultancy services in excess of what is offered via Gelato, this will be governed by a separate contract between the Customer and such third party, and Gelato does not assume any responsibility for such services.

8. Taxes

The Customer is responsible for all direct and indirect 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 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 levy withholding Tax on any payment from the Customer to Gelato or to comply with any other obligations it may have under applicable tax law. The Customer will 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.

9. Intellectual Property

Gelato grants Customer a limited right to access and use the Platform solely for the purpose of obtaining Services. The Platform consists of and contains intellectual property and other material, such as software, trademarks and
graphics, that are proprietary to Gelato ASA, its Affiliates, or its licensors. The Customer is not granted any rights to such property or material except as set forth in the Agreement. The Customer shall not use the Platform for any other purpose than for the manner permitted by the Agreement. The Customer will not copy, rent, lease, sell, distribute, reverse engineer, create derivatives, or interfere with security measures or the operation, of such property or materials. The Customer acknowledges that the Platform may consist of open source software, and such
software is licensed subject to the terms of the applicable open source license.
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.

10. Confidentiality

Each party will not 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 preceding 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.

11. Liability

In no circumstances is either party liable to the other for any indirect 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. In the event of a claim before the Agreement has been in force for more than one full calendar year, the maximum annual liability shall be calculated as the average, monthly amount paid by the Customer to Gelato during the months the Agreement has been in force, multiplied by 12.
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.
The Customer acknowledges that the Platform and the Services are provided "as is", and Gelato makes no warranties with respect to the Platform and the Services. 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) lack of accuracy, substance, clarity or quality of the
User Content or (iv) breach of the Agreement, or other inappropriate or unauthorized use of the Platform or Services, by the Customer or any Affiliate, third party or individual authorised (directly or indirectly) 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.

12. Indemnifications

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.

13. Governing Law and Dispute Resolution

The Agreement shall be governed by the laws of Norway. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Any disputes arising in connection with the Agreement shall be finally settled by arbitration in accordance with the International Chamber of Commerce (ICC) Rules of Arbitration. The arbitration shall be held in the city in which Gelato has its place of business. The language of the arbitration shall be English. This arbitration clause shall not prevent Gelato from taking legal action before ordinary courts for the collection of payment under the Agreement or enforcement of Gelato's intellectual property rights or the Data Processing Agreement.

14. Severability

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

15. No agency

No agency, partnership, joint venture or franchise relationship is implied, intended or created by these Terms.

16. Assignment

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).

17. Entire Agreement

These Terms, together with the Subscription Form 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.

18. Privacy

Gelato is the controller with respect to the processing of personal data concerning users of the Platform. Gelato process such data in accordance with Gelato's Privacy Policy. Gelato is the processor with respect to the processing of personal data contained in the User Content which the Customer uploads to the Platform and makes accessible to Gelato as part of the Services. This relation is governed
by Gelato's Data Processing Terms, which forms an integrated part of the Agreement. The Customer warrants that its submission of personal data in connection with the use of the Service is in accordance with applicable legislation, and without limiting anything else in this Agreement, the Customer shall indemnify and defend all Gelato Group entities harmless for any costs and losses caused by any breach of such warranty.

19. 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.

20. Contact Information

The Customer may contact Gelato by sending correspondence to that address or by emailing us at [email protected]. The Customer can access a copy of these Terms by clicking here: Subscription Terms. Subscription Terms.