- Brokers and Other Intermediaries
- Cancellation or Deviation
- Choice of Law and Venue
- Content and Refusal of Work
- Cost and Expense of Legal Action
- Creative Work
- Customer Furnished
- Damages/Limitation of Liability
- Experimental and Preliminary Work
- Express Warranties
- Finance Charge, Acceleration, Collection Cost, Suspension of Work, Liens
- Insurance, Risk of Loss
- Mailing Lists
- Outside Purchases
- Overruns, Underruns, Spoilage
- Prepress, Preparatory and Proofing
- Production Schedules
- Storage, Overages
- Subsequent Work
- Special Provisions applicable to Web Store Purchases
Prices estimated herein are based upon the written understanding of Patented Acquisition Corporation d/b/a Think Patented (“Think Patented”) of the customer specifications submitted. No handwritten alterations to the printed portions of this agreement are valid unless initialed by Think Patented and customer. Any changes to the original specifications of this agreement after acceptance by Think Patented will be billed as extra charges at Think Patented's usual rates.
Notwithstanding the foregoing, and recognizing both the frequency of change orders and press deadlines, Think Patented's written change order sent to customer shall amend the terms of the specific job it is pertinent to without the countersignature of customer, provided that customer does not object to the change order upon receipt thereof by delivery-receipted email or facsimile. Any variation in specifications from the specifications submitted as part of the quotation shall be deemed a change order.
Think Patented may, in its sole discretion, assign this estimate and/or subcontract any and all of the work hereunder. This agreement shall be binding upon and shall inure to the benefit of the successors, and assigns of the customer and Think Patented, provided, however, that customer may not assign or transfer this agreement, in whole or in part, except on the prior written consent of Think Patented.
When contracting with an intermediary such as a broker, ad agency or reseller for work on behalf of their customers, unless otherwise agreed in writing, the intermediary shall be fully responsible to Think Patented for timely payment of invoices and for related collection costs, legal fees and interest. This will be done without regard to whether or not the intermediary has been paid by their customer for services rendered or products supplied.
In the event of cancellation of or deviation from all or part of the work covered hereby, customer shall give Think Patented as much notice as reasonably practicable. Customer shall be liable for all costs incurred by Think Patented resulting from such cancellation or deviation that are not otherwise avoidable by Think Patented through reasonable commercial efforts, including, without limitation, down press and bindery time, materials ordered or inventoried on customer's behalf and not otherwise usable by Think Patented in the ordinary course of its business within a reasonable period of time at the scheduled plant of production, and related obligations.
This agreement is made pursuant to and shall be governed by the law of the state of Ohio, and customer consents to jurisdiction of the courts thereof.
Claims for defects, damages, or shortages must be made by the customer in writing no later than 10 calendar days after delivery FOB Think Patented's dock. If no claim is made within the specified time period, Think Patented and the customer will have mutually acknowledged that the job has been accepted by the customer and that Think Patented's performance has fully satisfied all terms, conditions and specifications of the purchase agreement.
The customer warrants that the , materials supplied by it do not contain anything that is libelous, scandalous, or anything that threatens anyone's right to privacy or other personal or economic rights or violates the rights of any third party. Think Patented, when not acting in an illegal discriminatory manner, reserves the right at his or her discretion to reject any job tendered based on illegal, libelous, scandalous, improper, or unsubstantiated content or based on copyright, trade mark, trade name or service mark infringement related to any elements of the job.
The customer warrants that it has the right to produce the subject matter to be printed, duplicated or distributed. If the subject matter is copyrighted, the customer warrants that it owns the copyright or has express permission of the owner to reproduce the copyrighted subject matter, and that it has not removed any copyright notice from any material to be reproduced without written permission.
The prevailing party in any legal action or proceeding brought to enforce this agreement shall be entitled to recover from the other reasonable attorneys' fees, costs and expenses arising out of such legal action brought before a court, mediator or arbitration.
Think Patented may provide creative work in the form of creative briefs, ideas, concepts, demos, sketches, dummies, storyboards, comprehensive layouts, prototypes or by other means. Creative work may be communicated verbally, visually and/or electronically. Unless otherwise agreed in writing, this work is the sole property of Think Patented and may not be used by the customer in any form or derivation without Think Patented's written permission or without customer's payment of compensation as determined by Think Patented. Customer's rights to use such creative work shall further be limited to the original agreed-upon purpose and for any time limit specified unless otherwise agreed in writing.
Materials: furnished by customers or their representative are verified by delivery tickets. Think Patented bears no responsibility for discrepancies between delivery tickets and actual counts. Customer-supplied paper must be delivered according to specifications furnished by Think Patented. These specifications will include correct weight, thickness, pick resistance, and other technical requirements. Artwork, film, color separations, special dies, tapes, disks, electronic files or other materials furnished by the customer must be usable by Think Patented without alteration or repair. Items not meeting this requirement will be indentified by Think Patented and may be repaired by the customer, or by Think Patented at Think Patented's current rates. Think Patented will not be liable for any defects or delays caused by customer's failure to supply materials that are not usable in whole or in part by Think Patented.
Think Patented's maximum liability, whether by negligence, agreement, or otherwise, will not exceed the purchase price paid by customer for the affected products.
The parties to this agreement mutually agree that Think Patented's liability for any and all claims whatsoever of any kind and nature arising out of this agreement shall not exceed Think Patented's price to customer for performing the affected portion of the work (including any services, but not including sums paid to third parties) that is the subject of this agreement or fraction affected, and further mutually agree that replacing the work (including any services) or re-mailing or re-shipping a correction or corrected affected products as soon as possible to rectify the mistake that is the subject of this agreement shall satisfy any and all claims whatsoever of any kind and nature arising out of this agreement.
Notwithstanding the forgoing, to the extent that material submitted by customer does not conform to Think Patented's specifications, contains clerical or typographical errors, or otherwise does not strictly meet production deadlines as specified in this agreement Think Patented shall have no liability for claims or delays arising out of this agreement. Think Patented's clerical and typographical errors will be corrected without additional charges.
Under no circumstances will Think Patented be liable for specific, incidental or consequential damages, including but not limited to lost profits and lost postal discounts, whether or not proximate or foreseeable, arising out of the work, including any services, that is the subject of this agreement.
Customer agrees that the prices in this agreement for the work (including any services) that is the subject of this agreement are consideration for limiting Think Patented's liability hereunder.
Unless otherwise specified, the price quoted is for a single shipment, without storage, F.O.B. Think Patented's dock. Proposals are based on continuous and uninterrupted delivery of the complete order. If the specifications state otherwise, Think Patented will charge accordingly at current rates. Charges for delivery of materials and supplies from the customer to Think Patented, or from the customer's representative to Think Patented are not included in quotations unless specified. Title for finished work passes to the customer F.O.B. Think Patented's dock.
An estimate not accepted in writing within thirty (30) days may be changed. No discount will be allowed unless specifically set forth in the estimate itself.
Estimates are based on Think Patented's written understanding of the customer specifications and the accuracy of the specifications provided to Think Patented by the customer. Think Patented has the option to re-estimate a project at the time of submission by customer if project does not conform to the information on which the original estimate was based.
Estimates are based on the cost of services, labor and materials on the date of the estimate. If changes occur in cost of materials, labor, or other costs prior to acceptance, or if the customer requires changes in specification, quantities, designs, or the production schedule subsequent to acceptance, or in the event of foreign or domestic legislation enacted by any level of government, including tax legislation, which increases the cost of producing, warehousing, or selling the goods or services purchased hereunder, Think Patented reserves the right to change the price estimated. Subsequent orders will be subject to price revision if required.
Estimates do not include applicable taxes, shipping costs or deliveries unless specifically stated in the estimate.
If there is a change in specifications or instructions to the original estimate and these changes result in additional costs, Think Patented will inform the customer, in writing, what these additional costs will be. The work performed will be billed at the current rates as agreed, and the completion date may be delayed.
Experimental and preliminary or other work performed at customer's request shall not be used without Think Patented's written consent.
Think Patented warrants that the final work product will fully meet all of the requirements of the purchase agreement in all material respects as agreed to by Think Patented and the customer. Additionally, Think Patented and the customer mutually acknowledge that all preliminary work, including but not limited to sketches, copies, dummies, etc., are only intended to illustrate the general type and quality of the final work product, and are not intended nor are they required to meet fully all of the requirements of the purchase agreement as agreed to by Think Patented and the customer. EXCEPT AS SET FORTH ABOVE, THINK PATENTED HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
Unless otherwise specified or regulated, a finance charge of one and one-half percent (1.5%) percent per month , or eighteen (18%) percent per annum), or if less, the highest rate allowable by applicable law, will be charged on all past due balances until paid.
Customer shall execute financing statement(s) on request and irrevocably authorizes Think Patented to execute and file same.
Think Patented and customer mutually agree that time is of the essence in this agreement, and if customer defaults in the payment of any part hereof the entire amount of the agreement shall immediately become due and payable without notice at the option of Think Patented together with all costs of collection, including reasonable attorney's fees if collected by law or through an attorney.
In the event customer defaults in making any payment under this or any other agreement currently being performed for customer by Think Patented, Think Patented may suspend performance under this agreement.
As security for payment of any sum due under the terms of this agreement, Think Patented has the right to hold and place a lien on all of the customer's property in Think Patented's procession.
Customer represents and warrants that neither the execution, delivery or performance, nor consummation of the transactions contemplated by this Agreement will result in actual or alleged infringement of any proprietary right (including, but not limited to, trademark, trade secret, patent or copyright rights), or any actual or alleged misuse of personally identifiable information, or violation of any other laws and regulations applicable, or a violation or breach of, or default under any provision of the charter, by-laws or any material agreement to which it is a party. At all times customer's performance under this Agreement will be in compliance with any and all other rights arising from or in connection with the products or services produced by Think Patented at the direction of the customer
Customer agrees to indemnify and save Think Patented harmless from any and all losses, claims, or damages (including legal costs and reasonable attorney fees) that Think Patented may suffer in connection with a claim related to any actual or alleged breach of the representations and warranties described above.
Customer shall be responsible for insurance on their material from and after the time of delivery FOB Think Patented's dock.
All files, software, programs, film, plates, artwork, dies, film, data, and digital output files, or other materials (“Materials and Data”) not supplied by customer but used to perform the services hereunder shall remain the exclusive property of Think Patented unless otherwise agreed in writing. Think Patented shall carry insurance to protect against acts or negligence on the part of its employees in the normal course of business. If specific additional insurance coverage is desired, such coverage must be specified by agreement or by separate insurance rider and premium. In such instances, the liability for losses will be limited to the agreed upon insurance amount.
As to property owned by customer, Think Patented will only maintain fire and extended coverage on property belonging to the customer while the property is in Think Patented's possession. Think Patented's liability for this property will not exceed the amount recoverable from the insurance. Additional insurance coverage may be obtained if it is requested in writing, and if the premium is paid to Think Patented by customer.
Customer shall bear all risk of loss to finished Work upon delivery of the work by Think Patented or its subcontractor, as applicable, to a common or contract carrier or to the U.S. Postal Service mail unit, F.O.B. Think Patented's or its subcontractor's shipping dock. The risk of loss for property furnished and/or owned by customer and for partially-finished work before or after the manufacturing process and while in transit to or from Think Patented's premises shall be borne by customer. Title to finished and partially-finished work shall pass at the same time the risk of loss for such work passes to customer.
This agreement contains the entire agreement of the parties and no inducements, representations, promises, agreements, of understandings, oral or in writing between the parties, not embodied herein or subsequently made a part hereof by a properly executed addendum or amendment hereto as herein provided, shall be of any force or effect.
No addendum to or amendment in the provisions of this agreement shall be effective or binding upon a party hereto unless embodied in a written instrument executed on behalf of such party buy an authorized representative.
Customer's mailing list(s) in Think Patented's possession, for storage or otherwise, is the exclusive property of the customer and shall be used only at the customer's instructions. Think Patented shall provide reasonable and prudent protection against the loss of a customer's list, in much the same manner that Think Patented uses for the protection of its own confidential information. This includes adequate backup procedures for all files and programs.
Think Patented shall provide reasonable and prudent security to protect the customer's data from access by non-essential personnel while in the possession of Think Patented in the same manner that Think Patented uses for the protection of its own confidential information.
Think Patented is not responsible for the accuracy or integrity of lists or other data supplied by the customer or a list broker. Unless otherwise specified in writing in advance, all rented mailing lists are provided on a one-time use basis.
Orders shall be effective upon acceptance by Think Patented. Acceptance by Think Patented may be either by notification to customer or by commencing to produce work on the goods or services ordered. In the case of product produced in response to print-on-demand website orders, such orders shall be deemed made and irrevocable once placed electronically.
Acceptance of orders is subject to credit approval and other causes enumerated under Production Schedules.
The work is to be performed according to specifications expressly set forth in the agreement and in any of Think Patented's specifications relating to particular portions of the work, as provided to customer. If the customer furnishes its own paper for any work hereunder, the provisions of Think Patented's furnished paper rider shall apply. If for any reason, other than solely Think Patented's error, all or any part of the work must be redone, an additional charge will be made at current rates. An additional charge at current rates may also be made for work requested by the customer that is different from or in addition to the work, as specified in the estimate.
Unless otherwise agreed in writing, all outside purchases as requested or authorized by the customer, are chargeable. Customer is responsible for payment for any paper which Think Patented has been authorized by the customer to purchase, including paper remaining on hand as the result of customer changing suppliers, discontinuing publication, or changing paper requirements. Think Patented reserves the right to substitute comparable paper of a manufacturer different than that designated unless specified otherwise in the agreement.
Overruns or Underruns: will not exceed ten (10) percent of the quantity ordered, unless specified otherwise in the agreement. Think Patented will invoice for the actual quantity delivered within this tolerance. If the customer requires a guaranteed quantity, the percentage of tolerance must be stated at the time of estimate. In the case of a fulfillment agreement, fulfillment Think Patented is not responsible for normal spoilage of material that occurs naturally during processing.
Spoilage: All direct mail handling and processing involves spoilage. Spoilage of up to three (3) percent of customer's material is typical. Allowances for spoilage should be taken into consideration in ordering material. Every effort will be made to handle customer's material with frugality and to prevent undue spoilage. Nevertheless, Think Patented cannot accept responsibility for shortages of material as a result of normal spoilage in processing.
Verified Quantities: Outside manufacturer delivery tickets must accompany the material delivered and should show the number of rolls, skids or cartons, the quantity per skid or carton and the total delivery quantity. Each incoming carton or skid must bear an identity, item code, quantity and a sample clearly visible. Each skid should have only one material version, unless clearly marked and separated. Multiple items should not be included within a single carton, skid or container unless noted thereon and on accompanying paperwork. Think Patented will apply a surcharge for any rework necessary for materials received not meeting these specifications.
Counts: Think Patented accepts outside manufacturers' count until processing and assumes no responsibility for shortages discovered at that time. Additional charges will apply if customer requires Think Patented to verify outside manufacturer's counts prior to processing. Customer is expected to provide Think Patented with sufficient inventory or adequate sources of supply to meet anticipated demand. Cost for backorders, delay notices, canceled orders and increased customer service resulting from out of stock conditions will be billed additional to customer.
Collect shipment will be accepted by Think Patented only if clearance is obtained in advance, and a service charge will be added to the actual freight charges. Think Patented is not responsible for the condition of shipped over's, unless customer has been billed for packing and/or shipping.
- (a) If the fulfillment supplier is not authorized to perform counts of the literature or products received from customer, nor is there independent verification, then no realistic shrinkage expectations can be developed and the fulfillment supplier is not responsible for inventory shrinkage.
- (b) If the fulfillment supplier performs test counts, spot checks and weight counts, the industry standard for shrinkage is five (5) to ten (10) percent of the printed material received and two (2) to three (3) percent of products received.
- (c) If the fulfillment supplier has been paid to count/verify valuable items on receipt and to maintain the counted material in a special secured environment, the standard shrinkage allowances do not apply, and the fulfillment supplier is responsible for losses that could have been prevented by exercising reasonable and prudent care.
Any liability for losses that the fulfillment supplier assumes is limited to the cost of the materials ONLY and does not include indirect or consequential claims, such as loss of sales or opportunity.
Unless otherwise specified herein, payment for services shall be net cash due thirty (30) days from invoice date and payment for freight shall be net cash, due 10 days from invoice date. Unless otherwise agreed, invoice date will be the date any of the work is first available for shipment.
Estimates do not include postage. Think Patented will notify the customer in writing including by facsimile or by delivery-confirmed e-mail of the required postage as soon as this amount is known and will notify the customer of the date when the postage is needed in order to complete the mailing prior to the agreed upon mailing date. While Think Patented will make every effort to provide the customer with an accurate estimate of required postage, Think Patented is not responsible for additional postage charges if the rate of postage changes for reasons beyond Think Patented control.
Payment of postage in advance is required on all orders and is the responsibility of the customer. Think Patented reserves the right to hold mailings for which sufficient postage has not been paid or until postage payment has been verified. The customer will provide the postage payment in adequate time for Think Patented to complete the mailing prior to the previously agreed upon mail date.
A color proof is used to simulate how the printed piece will look prior to production on the printing press (offset or digital). Due to differences between the proofing substrates, equipment, and other conditions the proof may present a “reasonable” variation in color between the proof and printed piece. A “reasonable” variation in color between color proofs and the completed job may be expected. When variations of this kind occur, it will be considered acceptable performance
It is the customer's responsibility to maintain a copy of the original data, including all Materials and Data, submitted to Think Patented. Think Patented is not responsible for accidental damage to material, data or media, including Materials and Data, supplied by the customer or for the accuracy of furnished input or final input. Until the customer's data or media, including Materials and Data, can be evaluated by Think Patented, no claims or promises are made about the provider's ability to work with the material submitted in digital format, and no liability is assumed for problems that may arise. Any additional translating, editing, or programming needed to utilize customer-supplied files will be charged at prevailing rates.
All Materials and Data created by Think Patented, shall remain Think Patented's exclusive property.
Think Patented will submit prepress proofs along with original copy either in paper or pdf or other electronic copy for the customer's review and approval. Corrections will be communicated electronically or returned to Think Patented on a "master set" marked "OK,""OK With Corrections," or "Revised Proof Required" and electronically authorized or signed by the client. Until the master set is received, no additional work will be performed. Think Patented will not be responsible for undetected production errors if:
- Proofs are not required by the customer;
- The work is printed per the customer's OK;
- Requests for changes are communicated orally.
When proofing color, a reasonable variation between color proofs or electronic renderings and the final product is to be expected. This is due to differences in viewing conditions, equipment, paper, inks, and toner between the color proofing process and print production.
Press proofs will not be furnished unless they have been requested by the customer and presented in Think Patented's quotation. A press sheet can be submitted for the customer's approval as long as the customer is present at the press during make-ready. Any manufacturing time lost or alterations/corrections made because of the customer's delay or change of mind will be chargeable at Think Patented's current rates.
Production schedules shall be established and followed by both the Customer and Think Patented. There will be no Think Patented liability or penalty for delays due to Customer delays, state of war, riot, civil disorder, fire, flood, terrorism, unavailability or shortages of materials, equipment failures, acts or defaults of the work of a subcontractor, delays in transportation, strikes, accidents, action of government or civil authority, acts of God, or other causes beyond the control of Think Patented. In such cases, schedules will be extended by an amount of time equal to delay incurred.
The prices in this agreement are based upon full compliance with said schedule and any deviation from the agreed upon schedule on the part of the Customer may result in a revised delivery date or additional charges for downtime or over-time incurred by Think Patented due to said deviation from the schedule. In any case, no additional work will be performed by Think Patented until such revised schedule and/or pricing is approved by the Customer.
All prices are for a single shipment, without storage, F.O.B. Think Patented's dock, unless otherwise specifically set forth on the face side hereof.
Intermediate Materials: Think Patented will retain intermediate materials until the related end product has been accepted by the customer. If requested by the customer, intermediate materials will be stored for an additional period for additional charge. Think Patented is not liable for any loss or damage to stored material beyond what is recoverable by Think Patented's fire and extended insurance coverage or the cost thereof, whichever is less.
Paper Storage: Only in the event that Think Patented stores paper on behalf of the customer the following is agreed. Think Patented will provide storage for the customer's paper chargeable at Think Patented's current rates and based on the quantity of paper on hand the first day of the month. If storage charges remain unpaid for 90 days, Think Patented shall have the right to demand that customer remove the paper from Think Patented's storage. If customer fails to remove the paper after 20 days' notice, Think Patented may sell the paper and remit the proceeds to customer less storage costs and costs of sale. Think Patented shall also have the right to purchase the paper for its own account at market rates.
Material Storage: Only In the event that Think Patented stores materials on behalf of the customer the following is agreed. Storage of finished goods, inserts, covers, cartons, and all other material will be free for up to 14 days prior to, and 14 days after, the originally scheduled print date, Finished goods and other material received earlier than 14 days prior to, or remaining in storage 14 days after the originally scheduled print date will be chargeable at Think Patented's current rates. Skids may not contain more than 2,000 pounds of material. If there is no activity storage charge, or request by the customer for return of stored material for 3 months after the initial agreement storage period, Think Patented has no liability if it chooses to dispose of, or destroy, the stored material unless otherwise agreed in writing. Think Patented reserves the right to bill any job once it is complete, regardless of when shipped.
Overages: The customer must advise Think Patented, in advance of the job, the disposition of overs. Overs may be returned to the customer, stored or destroyed. If items are stored or returned, applicable storage and delivery charges will be added. Additionally, at Think Patented's option and without liability to Think Patented, material may be automatically destroyed after 30 days if customer has failed to respond to a disposition request or failed to pay for storage starting 14 days after the mail date. Premium storage rates may be applied to old materials or materials for which disposition has not been designated.
To facilitate and expedite the parties' dealings on future printing jobs, it is agreed that the terms set forth in this agreement shall apply to all future printing jobs unless amended or contradicted in writing signed by both parties.
All taxes and assessments levied by any governmental authority are the responsibility of the customer. All amounts due for taxes and assessments will be added to the customer's invoice. No tax exemption will be granted unless official proof of the customer's exemption is on file with Think Patented or such documentation accompanies the order. If, after the customer has paid the invoice, it is determined that more tax is due, the customer must promptly remit the required taxes to the taxing authority or immediately reimburse Think Patented for any additional taxes paid.
Unless otherwise agreed, the customer will pay for all transmission charges. Think Patented is not responsible for any errors, omissions, or extra costs resulting from faults in transmission.
If customer is making web store purchases of products or content supplied by a third party, customer agrees that (i) Think Patented shall have no liability for the content of the products delivered and that customer shall look only to the supplier of the content for any claims related to or based upon such content and (ii) Think Patented may rely on the specifications supplied by such third party in preparing products produced on behalf of customer and that, except as otherwise agreed in writing by Think Patented, customer shall not be authorized to alter such specifications. All other terms and conditions herein shall apply to such web store purchases.
No waiver by either party of any default by the other in the performance of or compliance with any provision, condition, or requirement herein shall be deemed to be a waiver of, or any manner release such other party from compliance with any provision, condition, or requirement in the future, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter. Any matter arising under this Agreement that creates a right of action in either party against the other party, or the enforcement of any obligation or undertaking by one party against the other, shall survive any termination or expiration of this Agreement.