The following Terms and Conditions (“Terms”) bind Patented Acquisition Corporation d/b/a Think Patented (“Think Patented”) and any Customer executing or accepting any agreement, work order, estimate, proposal, quote or purchase agreement for goods and services from Think Patented (“Customer”), or any individual visitor or user (“User”) of any of the Think Patented websites. These Terms govern the sale of the goods, including but not limited to paper goods or printing products (“Goods”) and services (“Services”) by Think Patented to any Customer. Any affiliated agreement, work order, estimate, proposal, quote or purchase agreement with these Terms, (collectively, this “Agreement”) comprise the entire agreement between the parties.This Agreement is intended to govern each of the following as applicable and designated herein:
- Goods. The provision of printed and manufactured goods by Think Patented as ordered by any Customer.
- Services. The provision of any website development services, mailing services, sales or marketing services, and other services by Think Patented as ordered by any Customer.
- Website. The use of any of the Think Patented family of websites by any individual, whether a Customer or User. See Exhibit A.
Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
I. PROVISION OF GOODS AND SERVICES
Cancellation or Deviation
In the event of cancellation of or deviation from all or part of the work governed by this Agreement, 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. Such costs include, but are not necessarily limited to: down press and bindery time, materials ordered or inventoried on Customer’s behalf that are 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.
All Customer-furnished materials or materials provided to Think Patented by any third party designee of Customer shall be verified through the use of written Customer delivery tickets. Think Patented bears no responsibility for discrepancies between delivery tickets and actual counts. Customer-furnished paper must be delivered according to any 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 Customer must be usable by Think Patented without alteration or repair. Items not meeting this requirement will be identified by Think Patented and may be repaired by Customer, or by Think Patented at Think Patented’s current rates. Think Patented will not be liable for any defects in any Goods or delays in the provision of Goods or Services caused by Customer’s failure to furnish materials that are not usable in whole or in part by Think Patented.
Unless otherwise specified, the price quoted is for a single shipment, without storage, F.O.B. Think Patented’s dock. F.O.B. stands for “freight on board” and is a designation used to indicate when liability and ownership of Goods is transferred from Think Patented to Customer. Proposals are based on continuous and uninterrupted delivery of the complete order. If the specifications state otherwise, Think Patented will charge accordingly at its current rates. Charges for delivery of materials and supplies from Customer to Think Patented, or from Customer’s representative to Think Patented are not included in quotations unless specified. Title for finished work passes to Customer F.O.B. Think Patented’s dock.
Written estimates, which includes any written proposals or quotes for purposes of this section, reflect Think Patented’s written understanding of Customer specifications for any Goods or Services and the accuracy of the specifications provided to Think Patented by Customer. Think Patented has the option to re-estimate a project for Goods and Services at the time of submission by Customer if the project does not conform to the information on which the original estimate was based. Think Patented’s labor prices are valid for 30 days from quotation date, unless otherwise agreed upon. Quote is based on current paper prices. Paper is subject to adjustment and availability at the time the paper is shipped from the supplier, unless otherwise agreed upon. This quotation is subject to credit approval. No discount will be allowed unless specifically set forth in the estimate itself. Estimates do not include applicable taxes, shipping costs or deliveries unless specifically stated in the estimate.
Estimates are based on the cost of any 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 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 the price revision if required. If there is a change in specifications or instructions to the original estimate and these changes result in additional costs, Think Patented will inform Customer in writing of the additional costs. The work performed will be billed at Think Patented’s current rates as agreed, and the completion date may be delayed.
Orders for Goods and Services shall be effective upon acceptance by Think Patented. Think Patented may accept orders either by written notification to Customer or by commencing to produce work on the ordered Goods or Services. In the case of Goods or Services ordered via 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 the section entitled Production Schedules.
All ordered work shall be performed by Think Patented according to specifications expressly set forth in any agreement, agreement, work order, estimate, proposal, quote or purchase agreement with Customer. If Customer furnishes its own paper for any work hereunder, the provisions of Think Patented’s furnished paper rider shall apply. With the exception for occurrences due to errors and omissions by Think Patented, all or part of any work that must be redone shall require an additional charge to Customer as current rates. Customer may incur an additional charge at Think Patented’s current rates should Customer request work that is different from or in addition to the work originally requested, as specified in any written agreement, work order, estimate, proposal, quote or purchase agreement.
Unless otherwise agreed in writing, all outside purchases as requested or authorized by Customer are chargeable. Customer is responsible for payment for any paper or other materials which Think Patented has been authorized by Customer to purchase, including paper or other materials 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 or other materials of a manufacturer different than that designated unless specified otherwise in this Agreement.
Overruns, Underruns, Spoilage, Counts and Shrinkage
Overruns or Underruns. For purposes of this Agreement, overruns or underruns associated with Customer orders will not exceed ten percent (10%) of the quantity ordered, unless specified otherwise in a written agreement. Think Patented will invoice Customer for the actual quantity delivered within this 10% tolerance. If Customer requires a guaranteed quantity, any percentage of tolerance must be requested and recorded at the time of the estimate. In the case of a fulfillment agreement, 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 percent (3%) of Customer’s material is typical. Allowances for spoilage within this range of zero (0) to three (3) percent should be taken into consideration as a normal cost of business when ordering material. Think Patented will make every effort 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. Customer’s 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 that are all clearly visible. Each skid should have only one material version unless each skid is 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 Customer furnished materials received by Think Patented that do not meet these specifications.
Counts. Think Patented accepts outside manufacturers’ count until processing commences 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. Any additional costs incurred due to backorders, delay notices, canceled orders and increased Customer service resulting from out of stock conditions will be billed 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.
Shrinkage. Three categories of shrinkage allowances are typical in the fulfillment industry and in Think Patented’s provision of related Goods and Services:
- If Think Patented 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 Think Patented is not responsible for inventory shrinkage.
- If the Think Patented 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.
- If Think Patented 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 Think Patented is responsible for losses that could have been prevented by exercising reasonable and prudent care.
Any liability for losses that Think Patented 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.
Prepress, Preparatory and Proofing for Printing Goods and Services
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 under this Agreement.
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.
It is 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 Customer or for the accuracy of furnished input or final input. Think Patented makes no warranties or representations about Think Patented’s ability to work with any Customer furnished material until Think Patented can properly evaluate Customer’s data or media, including Materials and Data. Any additional translating, editing, or programming needed to utilize Customer-supplied files will be charged at current Think Patented rates.
Think Patented will submit prepress proofs along with original copy either in paper or Adobe Portable Document Format (.pdf) or other electronic copy for Customer’s review and approval. Corrections will be communicated by Customer electronically or returned to Think Patented on a “master set” marked “OK,” OK with Corrections,” or “Revised Proof Required.” Any such communications shall include Customer’s authorization in writing or acceptable electronic signature. Until the master set is received from Customer, no additional work will be performed. Think Patented will not be responsible for undetected production errors if:
” Proofs are not required by Customer; or
” The work is printed per Customer’s OK; or
” Requests for changes are communicated orally by Customer.
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 Customer and presented in Think Patented’s quotation. A press sheet can be submitted for Customer’s approval as long as Customer is present at the press during make-ready. Any manufacturing time lost or alterations/corrections made because of 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 Customer and Think Patented. Think Patented shall not incur a penalty or assume any liability for delays due to Customer delays, state of war, riot, civil disorder, fire, flood, acts of terrorism, unavailability or shortages of materials, equipment failures, acts or defaults of the work of a subcontractor, delays in transportation, strikes, accidents, actions 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 production schedules and any deviation from the agreed upon schedules on the part of Customer may result in a revised delivery date or additional charges for downtime or overtime incurred by Think Patented due to said deviation from the schedule. In any case, Think Patented shall not perform additional work until such a revised schedule and/or pricing is approved by Customer.
All prices are for a single shipment, without storage, F.O.B. Think Patented’s dock, unless otherwise specifically set forth in this Agreement or other written agreement.
Intermediate Materials: Think Patented will retain intermediate materials until the related end product has been accepted by Customer. If requested by Customer, intermediate materials will be stored for an additional period for an 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: In the event Think Patented stores paper on behalf of Customer, Think Patented will provide storage for Customer’s paper chargeable at Think Patented’s current rates and based on the quantity of paper on hand the first day of the applicable month(s). If storage charges remain unpaid for ninety (90) calendar 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 twenty (20) calendar days’ notice of any unpaid balance exceeding ninety (90) calendar days, Think Patented may sell the paper and remit the proceeds to Customer less storage costs, costs of sale or other related expenses. Think Patented shall also have the right to purchase the paper for its own account at market rates.
Material Storage: In the event that Think Patented stores materials on behalf of Customer, any such storage of finished Goods, inserts, covers, cartons, and all other material will be free for up to fourteen (14) calendar days prior to, and fourteen (14) calendar days after, the originally scheduled print date. Finished Goods and other material received earlier than fourteen (14) calendar days prior to, or remaining in storage fourteen (14) calendar days after the originally scheduled print date will be chargeable at Think Patented’s current rates. Any stored skids may not contain more than two-thousand (2,000) pounds of material. If there is no activity storage charge, or request by Customer for return of stored material for three (3) months after the initial agreement storage period, Think Patented shall have the right to destroy or dispose of the stored material unless otherwise agreed in writing. Think Patented reserves the right to bill for any completed Good or Service regardless of when shipped or used by Customer, respectively.
Overages: The Customer must advise Think Patented about the disposition of overages prior to any work commencing. Overages may be returned to Customer, stored or destroyed. If overage materials are stored or returned by Think Patented, applicable storage and delivery charges for such overage material will be charged to Customer. Additionally, at Think Patented’s option and without liability, Think Patented may destroy materials after thirty (30) calendar days if Customer has failed to respond to a disposition request or failed to pay for storage starting fourteen (14) calendar days after the mail date. Premium storage rates may be applied by Think Patented to old materials or materials for which disposition has not been designated by Customer.
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 otherwise agreed in a writing signed by both parties.
Unless otherwise agreed, Customer shall pay for all transmission charges. Think Patented is not responsible for any errors, omissions, or extra costs resulting from faults in transmission.
Special Provisions applicable to Web Store Purchases
For any web store purchases of products or content supplied by a third party, Customer agrees that:
- 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
- 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 of this Agreement shall apply to such web store purchases.
II. FINANCIAL TERMS
Finance Charge, Acceleration, Collection Cost, Suspension of Work, Liens
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 to Customer by Think Patented 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 any Customer property in Think Patented’s procession.
Unless otherwise specified herein, payment for Goods or Services shall be net cash due thirty (30) calendar days from invoice date and payment for freight shall be net cash, due ten (10) calendar days from any invoice date. Unless otherwise agreed, invoice date will be the date any Goods are first available for shipment or Services available for Customer use.
Estimates do not include postage. Think Patented will notify Customer in writing of the required postage as soon as this amount is known. Think Patented will also notify Customer of the date when the postage is needed in order to complete the mailing prior to the agreed upon mailing date. Think Patented will use facsimile or e-mail to provide such written notice to Customer. While Think Patented will make every effort to provide 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’s control.
Advanced payment of postage is required on all orders and is the responsibility of 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 to enable Think Patented to complete the mailing prior to the previously agreed upon mail date. Think Patented shall not be liable for any delays due to Customer’s failure to pay required postage.
All taxes and assessments levied by any governmental authority are the responsibility of Customer. All amounts due for taxes and assessments will be added to Customer’s invoice. No tax exemption will be granted unless official proof of Customer’s exemption is on file with Think Patented or such documentation accompanies any order. If, after Customer has paid any invoice, it is determined that more tax is due, Customer must promptly remit the required taxes to the taxing authority or immediately reimburse Think Patented for any additional taxes paid.
Wide Format Project Requirements
In order to properly meet Customer expectations and manage expenses associated with wide format projects, prior coordination and approval of both parties is required. For this reason, Think Patented requires the opportunity to properly assess a Customer’s requested installation site to take measurements, assess conditions into which any Goods or Services will be provided, and evaluate any other factors that might impact a project’s feasibility and cost (“Site Evaluation”). No agreements for wide format Goods or Services shall be executed without the completion of a formal Site Evaluation by Think Patented. Customer agrees to provide Think Patented ample time and access to complete its Site Evaluation. Unless agreed otherwise and in writing, Customer shall be charged a minimum of $150.00 per installation site. Think Patented will charge Customer reasonable expenses associated with the inspection and completion of the Site Evaluation. Expenses shall include, but not necessarily be limited to staff time, travel time, and equipment (i.e. lifts, ladders). At the completion of any Site Evaluation, Think Patented will prepare an estimate for Customer, including site photos for Customer to review prior to the execution of any agreement to commence any work. Customer is responsible for all Site Evaluation costs incurred by Think Patented, regardless of whether the wide format project is contracted by Customer or undertaken by Think Patented.
III. WARRANTIES, REPRESENTATIONS AND LIABILITY
Claims for defects, damages, or shortages must be made by Customer in writing no later than ten (10) calendar days after delivery F.O.B. Think Patented’s dock. If no Customer claim is made within the specified time period, the Goods shall be deemed accepted by Customer and Customer acknowledges that Think Patented’s performance has fully satisfied all terms, conditions and specifications of the purchase agreement.
Content and Refusal of Work
The Customer warrants all Customer-furnished materials do not contain anything that is libelous, scandalous, or threatens anyone’s personal or economic rights or violates the rights of any third party. Think Patented, in its sole discretion, reserves the right to reject any job tendered based on illegal, libelous, scandalous, improper, or unsubstantiated content or any job comprising copyright, trade mark, trade name or service mark infringement.
Contests and Related Promotions
In the event Customer has contracted with Think Patented for the purposes of printing and providing materials for use in any Customer or third party-sponsored contest, prize offering, game of chance, sweepstakes, lottery, fundraiser or other similar contest (“Contest”), Customer warrants and represents that all Customer or third party-furnished materials provided to Think Patented, including but not limited to Contest rules, prize descriptions, disclaimers, and disclosures for inclusion in any Contest-related materials or work product (“Contest Materials) are in compliance with all applicable laws, regulations, ordinances, industry standards, and guidelines. Customer hereby represents and warrants that Customer has and shall maintain in effect all required licenses, permissions, authorizations, consents, permits and insurance to carry out Customer’s obligations under this Agreement and any state or federal law regulating the administration of such Contests.
Think Patented disclaims all liability for any claims arising out of the administration of such a Contest by Customer or Customer’s designated third party in accordance with the terms of this Agreement. Customer agrees to indemnify Think Patented for any Contest-related claims of liability arising from Think Patented’s provision of Contest Materials, or related Goods and Services in accordance with the terms of this Agreement.
The Customer warrants and represents that it has the right to produce the subject matter to be printed, duplicated or distributed by Think Patented. Customer warrants that it owns any applicable copyright or has express permission of any copyright holder to reproduce the copyrighted subject matter. Customer further warrants that it has not removed any copyright notice from any material to be reproduced without written permission.
Cost and Expense of Legal Action
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.
Creative Work; Materials and Data
Think Patented may provide creative work in the form of creative briefs, ideas, concepts, designs, demos, sketches, dummies, storyboards, comprehensive layouts, prototypes or by other means (“Creative Work”). Creative Work may include any experimental and preliminary work performed at Customer’s request. Creative Work may be communicated verbally, visually and/or electronically. Creative Work may be subject to copyright, trademark, patent, trade secret or other legal protections.
Unless otherwise agreed in writing, such Creative Work is the sole property of Think Patented. Whenever possible, all Creative Work shall be conspicuously marked as “Creative Work” or otherwise noted as the property of Think Patented. Creative Work may not be used by 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 for which the Creative Work is being used and for any time limit specified unless otherwise agreed in writing.
Limitation of Liability
IN NO EVENT SHALL THINK PATENTED’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO THINK PATENTED BY CUSTOMER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
IN NO EVENT SHALLTHINK PATENTED BE LIABLE TO CUSTOMER OR ANY THIRD PARTY OR INTERMEDIARY FOR ANY LOSS OF USE, LOSS OF REVENUE OR PROFIT, OR LOSS OF POSTAL DISCOUNTS OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THINK PATENTED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
CUSTOMER ACKNOWLEDGES IT HAS AN AFFIRMATIVE DUTY TO MITIGATE ANY ASCERTAINABLE LOSSES, LIABILITIES OR DAMAGES RESULTING FROM A BREACH OF THIS AGREEMENT, BREACH OF ANY DUTY UNDER THIS AGREEMENT OR LAW, OR WHEN CUSTOMER HAS KNOWLEDGE OF ANY CIRCUMSTANCE IN WHICH THE PERFORMANCE OF THIS AGREEMENT IS NOT POSSIBLE.
Customer agrees that the prices paid under this Agreement and any Goods or Services subject to this Agreement are consideration for limiting Think Patented’s liability hereunder. The parties agree that replacing the Goods or Services or re-mailing or re-shipping a correction or corrected affected Goods as soon as possible to rectify the mistake that is the subject of any dispute under 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, is not provided on time, contains clerical or typographical errors, does not include required postage, or otherwise does not strictly meet production deadlines as specified in this Agreement, Think Patented shall have no liability for any resulting claims or delays. Think Patented’s clerical and typographical errors will be corrected without additional charges.
Think Patented warrants that the final Goods and Services will fully meet all of the requirements of any signed agreement in all material respects as agreed to by Think Patented and Customer. Additionally, Think Patented and Customer mutually acknowledge that all Creative Work, including but not limited to preliminary work, experimental work, 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 required to meet all of the requirements of any agreement between Think Patented and Customer.
EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, THINK PATENTED MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; or (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; or (c) WARRANTY OF TITLE; or (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
THINK PATENTED MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; or (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; or (c) WARRANTY OF TITLE; or (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
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), any actual or alleged misuse of personally identifiable information, any violation of any other applicable laws and regulations, or a violation, breach or default of or any material agreement to which it is a party.
Customer agrees to indemnify, save and hold harmless Think Patented 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 in this Agreement.
Insurance, Risk of Loss
Customer shall be responsible for insurance on their Goods or materials from and after the time of delivery F.O.B. Think Patented’s dock.
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 Customer in a separate insurance rider and premium. In such instances, the liability for any losses will be limited to the insured amounts in any such agreement, rider or premium. As to property owned by Customer, Think Patented will only maintain fire and extended coverage on Customer-owned property while the said property is in Think Patented’s possession. Think Patented’s liability for this Customer property will not exceed the amount recoverable from said insurance. If requested by Customer in writing, Think Patented may obtain additional insurance coverage. Customer is responsible for all costs associated with any such additional insurance coverage it requests Think Patented to secure.
Customer shall bear all risk of loss to finished Goods or other work product 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 Dock or its subcontractor’s shipping dock. The Customer bears the risk of loss for all Customer-furnished materials, Customer property, and any partially-finished work product before or after the manufacturing process and while in transit to or from Think Patented’s premises. Title to finished Goods and partially-finished work product shall pass at the same time the risk of loss for such work passes to Customer.
Customer Mailing Lists & Use of Customer Information
Customer’s mailing list(s) in Think Patented’s possession remains the exclusive property of Customer and shall be used solely according to Customer instructions. Think Patented shall provide reasonable administrative, technical and physical safeguards to protect Customer mailing lists and other Customer information from unauthorized use, disclosure, or loss.
Think Patented is not responsible for the accuracy or integrity of Customer mailing lists or other data supplied by Customer or a list broker. Unless otherwise specified in writing and in advance, all rented mailing lists are provided on a one-time use basis.
Prices estimated in any estimate, proposal or other written quote are based upon Think Patented’s understanding of Customer’s requests or specifications submitted. No handwritten alterations to the printed portions of this Agreement or any estimate are valid unless initialed by Think Patented and Customer. Any changes to the original specifications of this Agreement or any related estimate, proposal or written quote after acceptance by Think Patented will be billed as extra charges at Think Patented’s current rates.
Notwithstanding the foregoing, and recognizing both the frequency of change orders and press deadlines, a written change order sent to Customer shall amend the terms of any agreement without the countersignature of Customer, provided that Customer does not object in writing 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 estimate, proposal or written quote shall be deemed a change order.
Think Patented may, in its sole discretion, assign any estimate, work order, and/or subcontract for 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 Customer and Think Patented, provided, however, that Customer may not assign or transfer this Agreement, in whole or in part, except with the prior written consent of Think Patented.
Brokers and Other Intermediaries
When contracting with an intermediary including but not limited to a broker, independent freelancer, ad agency or reseller for work on behalf of their Customers, unless otherwise agreed in writing, the intermediary shall be bound and fully responsible as a “Customer” under the terms of this Agreement, including timely payment of Think Patented invoices and for related collection costs, legal fees and interest as a “Customer” under the terms of this Agreement. This will be done without regard to whether or not the intermediary has been paid by their Customer for Services rendered or Goods supplied.
Choice of Law and Venue
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of, or related to, this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio. Customer waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
All non-public, confidential or proprietary information of Think Patented or Customer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, Customer lists, pricing, discounts, or rebates, disclosed by Think Patented to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Think Patented or Customer in writing. Upon either party’s request, Buyer shall promptly return all documents and other materials received from the other party. Confidential information does not include information that is (a) in the public domain; (b) known to receiving party at the time of disclosure; or (c) rightfully obtained by either party on a non-confidential basis from a third party.
Entire Agreement, Integration and Severability
This Agreement represents the entire agreement between the parties. No inducements, representations, promises, agreements, understandings, whether oral or in writing, between the parties that are not embodied herein or subsequently made a part of this Agreement by a properly executed amendment as described in this Agreement 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 by an authorized representative.
If any term or provision of this Agreement is held to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by that party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Last Modified: January 18, 2018
This Website is offered and available to users who are 13 years of age or older. By using this Website, you represent and warrant that you meet the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.
Accessing the Website
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users.
Intellectual Property Rights
The Website and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
Linking to the Website
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part.
Links from the Website
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
Disclaimer of Warranties
YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICES OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT OR ANY SERVICES OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
Limitation on Liability
IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, OR TRUSTEES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THESE WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
Governing Law and Jurisdiction
Waiver and Severability
Entire Agreement; Conflicts with Think Patented Terms and Conditions