Trade customs are those practices which delineate the specific areas of responsibility with regard to a special trade or operation which might not be outlined in a commercial agreement. Where a commercial agreement is silent with regard to one or more practices, the Trade Customs areas are used to interpret the intent of the parties. It should be clearly understood that the Trade Customs protect both parties in a commercial agreement. It is, therefore, the responsibility and obligation of involved parties to understand their content and meaning.
OCEANWILD DESIGN GRAPHIC DESIGN / LOGO DESIGN / WEB DESIGN TRADE CUSTOMS
1. ESTIMATE: A preliminary projection of cost which is not intended to be binding. Estimates are based upon prevailing wages, the anticipated hours of work and cost of materials and supplies necessary to produce work in accordance with preliminary copy, style and specifications and are not binding upon OceanWild Design unless a firm quotation has been issued. Any alteration or deviation from an estimate involving extra costs will be executed only upon approval with the client.
2. QUOTATION: A quotation is a fixed price for producing a given project. A quotation is firm unless otherwise specified. Quotations are subject to acceptance within thirty (30) days and are based on the cost of labor and materials on the date of the quote. If changes occur in the cost of materials, labor or other costs prior to acceptance, the right is reserved to change the price quotes. Subsequent projects will be subject to price revision if required. Quotations do not include alterations or applicable sales tax unless otherwise specified.
3. STOCK PHOTOGRAPHY OR STOCK ILLUSTRATION: Purchase of stock photography and/or stock illustration is additional. All purchases will require written authorization. All stock purchases are licensed solely for OceanWild Design's use. Use on any materials not designed by Tracy Southard / OceanWild Design is prohibited.
4. AUTHOR'S ALTERATIONS (OR AA'S): Alteration charges are incurred by a client when a change is made to: approved layout, approved manuscript, mechanicals or disk produced correctly or any new work not within the original specifications.
5. OVERTIME OR RUSH JOBS: Overtime (or rush jobs) is work performed by OceanWild Design in excess of the work schedule of the project. Overtime may be charged at OceanWild Design's prevailing rates for this service.
6. COMPREHENSIVES: When purchasing a design, the client is purchasing rights and usage to only one of the submitted comps. If a client wants more than one of the logo designs that have been submitted or presented to the client, then these designs are charged at the same rate as the first design or at an additional rate to be determined by the designer. Any new designs, artworks or concepts submitted on any design comp including a logo design comp are copyright © Tracy Southard / OceanWild Design, where all rights are reserved.
7. COPYRIGHT OWNERSHIP: Creative work such as sketches, illustrations, layouts, designs, icons, logos, etc. produced on paper, computer disks or any other medium, are protected under the 1976 U.S. Copyright Act. Until the designer transfers ownership rights, creative work remains the property of the designer. There can be no use of the designer’s work except upon compensation to be determined by the designer. Purchase orders issued after the completion of creative work, claiming the client’s ownership of creative work, are not valid unless agreed upon by both parties.
8. LICENSE OF RIGHTS / COPYRIGHT: Upon compensation in full for the work performed and subject to designer's portfolio rights below, designer grants to the client the exclusive, perpetual and worldwide rights to reproduce, display and distribute the selected final design in all media. All preliminary, unused and in progress artwork remains the property of the designer and no rights to use such preliminary works are granted hereunder. Under U.S. Copyright Law, designer retains all copyright in and to the preliminary works and the final design.
9. PORTFOLIO RIGHTS: The designer retains the nonexclusive, perpetual and worldwide right to display, reproduce and distribute the designs in designer's portfolio and website, and third party trade publications or exhibits, solely for the purpose of promoting or exemplifying designer's work, and the right to be credited with copyright ownership and authorship of the designs in connection with such use.
10. DESIGNER'S RIGHTS: The designer further retains personal rights to use the completed project and any preliminary designs for the purpose of design competitions, awards entries, future publications on design, educational purposes and the marketing of the designer's business. Where applicable the client will be given any necessary credit for usage of the project elements.
11. EXPERIMENTAL WORK: Experimental or preliminary work performed at the client’s request will be charged at current rates and may not be used by the client until OceanWild Design has been reimbursed in full for the work performed. All experimental work performed by OceanWild Design without authorization of the client is not billable.
12. CONDITION OF COPY: If original copy, disk or manuscript furnished by the client to OceanWild Design differs from that which has been originally described and consequently quoted, the original quotation shall be amended or a new quotation will be issued.
13. PRODUCTION SCHEDULES: Production schedules will be established and adhered to by client and OceanWild Design provided that neither shall incur any liability or penalty for delays due to state of war, riot, civil disorder, fire, labor trouble, strikes, accidents, energy failure, equipment breakdown, delays of suppliers or carriers, action of government or civil authority and acts of God or other causes beyond the control of client or OceanWild Design. Where production schedules are not adhered to by the client, final delivery date(s) will be subject to renegotiation.
14. OUTRIGHT PURCHASE vs. REPRODUCTION RIGHTS: These terms should be established at the time of purchase. Outright purchase gives the buyer physical possession of the artwork or discs, while reproduction rights and related copyright interests require the return of the original to the artist. Outright purchase does not give to the buyer commercial or private reproduction rights or any other copyright interests unless so stipulated in the purchase agreement. The matter of first reproduction rights with subsequent reproduction rights subject to additional compensation should be clearly understood at the time of purchase.
15. RE-USE AND EXTENDED USE OF ARTWORK: Artwork purchased for a specific use cannot be re-used or adapted for other purposes than originally planned without additional compensation to the artist. If this possibility exists at the time of purchase, it should be so stated and the price adjusted accordingly. If re-use or adaptation occurs after purchase, the buyer should negotiate reasonable additional compensation with the artist. Whenever adaptation requires the services of an artist, and the creator has performed to the buyer’s satisfaction, the artist should be given the opportunity to revise his own work.
16. MARK-UPS: Any services or goods such as typography, printing, photography, etc., or materials used specifically for the completion of a given project will be billed to the client with an appropriate mark-up. This mark-up is a handling fee for travel, time and management fees.
17. TERMS: By requesting work either verbally, in writing or by purchase order, the client agrees to OceanWild Design's terms of payment and late charges on unpaid balances. Payment shall be in conformance with the quotation or invoice unless otherwise specified. Disputes over invoices must be made by the client in writing within a period of fifteen (15) days after the client’s receipt of the invoice. Failure to make a claim within the stated period shall constitute acceptance and an admission that the client agrees with the invoice submitted. If only a portion of the invoice is in dispute, it is the client’s responsibility to pay the portion not in dispute within the terms of the invoice.
18. LIABILITY: OceanWild Design is only liable for the correction of the OceanWild Design's errors made during the production process. The ultimate proofing prior to the printing or web posting is always the client’s responsibility unless OceanWild Design accepts this responsibility in a written agreement. In any instance, OceanWild Design cannot be liable for more than the design and mechanical costs of a job in dispute.
Any delay in the completion of the project due to actions or negligence of client, unusual transportation delays, unforeseen illness, or external forces beyond the control of the designer, shall entitle the designer to extend the completion/delivery date, upon notifying the client, by the time equivalent to the period of such delay.
19. INDEMNIFICATION: The client shall indemnify and hold harmless OceanWild Design from any and all losses, costs, expenses, and damages (including court costs and reasonable attorney fees) on account of any and all manner of claims, demands, actions and proceedings that may be instituted against the designer on grounds alleging the designer unknowingly violated any copyright or any proprietary right of another. Any materials such as photographs, photostats, transparencies, drawings, paintings, maps, diagrams, copywriting, slogans, etc. furnished by the client to OceanWild Design should not infringe on the copyright or proprietary right of any third party. OceanWild Design is indemnified against any liability due to the client's failure to obtain correct usage rights and said materials. Any false statements knowingly or unknowingly given to the designer, by the client, to be used as factual information to promote a product or service shall remain the client’s sole responsibility for substantiation and all other purposes. OceanWild Design is indemnified from any liability due to the client’s negligence.
20. PRINT MANAGEMENT / PRESS INSPECTIONS: If OceanWild Design performs a press inspection for a client, the client’s responsibility for proofing remains in effect. If the client has signed a printer’s blueline, OceanWild Design is not responsible for any errors reflected in the approved blueline. If OceanWild Design approves color on a press proof or any other color proof, OceanWild Design is only responsible for approving color acceptable by industry standards. The printer is responsible for ensuring that the subsequent press run matches the color within acceptable standards of the proof approved by OceanWild Design.
21. NEW MEDIA: If OceanWild Design reviews a website for a client, the client’s responsibility for proofing remains in effect. If the client has approved a site’s content, OceanWild Design is not responsible for any errors reflected on the approved site. The client’s Webmaster is responsible for ensuring that the colors and images remain within the acceptable standards of what has been approved by OceanWild Design.
22. ACCEPTANCE OF TERMS: The signing of an estimate, quote, contract, agreement or purchase order shall evidence both an understanding and acceptance of the Terms and Conditions and Trade Customs of OceanWild Design. All business conducted with OceanWild Design will be based upon the guidelines set forth in the Terms and Conditions and Trade Customs.
OCEANWILD DESIGN PRINTING TRADE CUSTOMS
1. PRINTING QUOTE: A quotation not accepted within thirty (30) days may be changed by OceanWild Design / the printing service (synonymous terms).
2. ORDERS: Acceptance of printing orders is subject to credit approval and contingencies, such as fire, water, strikes, theft, vandalism, acts of God and other causes beyond OceanWild Design's control. Canceled orders require compensation for incurred costs and related obligations.
3. EXPERIMENTAL WORK: Experimental or preliminary work performed at customer's request will be charged to the customer at OceanWild Design's current rates. This work cannot be used without OceanWild Design's written consent.
4. ACCURACY OF SPECIFICATIONS: Printing quotes are based on the accuracy of the printing specifications provided. OceanWild Design may requote a job at time of submission if materials do not conform to the information on which the original printing quote was based.
5. ELECTRONIC MANUSCRIPT OR IMAGE: It is the customer's responsibility to maintain a copy of the original file. OceanWild Design is not responsible for accidental damage to media supplied by the customer or for the accuracy of furnished input or promises made about the provider's ability to work with jobs 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.
6. ALTERATIONS / CORRECTIONS: Customer alterations include all work performed in addition to the original specifications. All such work will be charged at OceanWild Design's current rates.
7. PREPRESS PROOFS: OceanWild Design will not be responsible for undetected production errors if: proofs are not requested by the customer; the work is printed per the customer's "OK"; and requests for changes are communicated orally.
8. COLOR PROOFING: Because of differences in equipment, paper, inks and other conditions between color proofing and production press room operations, a reasonable variation in color between color proofs and the completed job is to be expected. When a variation of this kind occurs, it will be considered acceptable performance.
9. OVER-RUNS OR UNDER-RUNS: Over-runs or under-runs will not exceed five (5) percent of the quantity ordered. OceanWild Design will bill for actual quantity delivered within this tolerance. If the customer requires a guaranteed quantity, the percentage of tolerance must be stated at the time the printing quote is requested.
10. SHIPPING AND DELIVERY: Unless otherwise specified, the quote is for a single shipment to a single address, without storage. Proposals are based on continuous and uninterrupted delivery of the complete order. If the specifications state otherwise, OceanWild Design will charge accordingly at current rates. Charges for delivery of materials and supplies from the customer to the company, or from the customer's supplier to the company, are not included in quotations unless specified. Title for finished work passes to the customer upon delivery to the carrier at shipping point; or upon mailing of invoices for the finished work or its segments, whichever occurs first.
In no case shall OceanWild Design be liable for any consequential or damages resulting from any delay in shipment or delivery. All OceanWild Design's customers agree not to hold OceanWild Design liable for delays in shipments caused by weather conditions, shipping company delays, international customs issues or any other circumstances beyond OceanWild Design's direct control. OceanWild Design's shipment and delivery dates are calculated based upon estimates provided by our suppliers. OceanWild Design will always act to make sure that delivery schedules are met.
In the event that a package is not delivered due to an error made by the customer in submitting the proper shipping address, OceanWild Design will have the package reshipped with corrected address and charge an additional shipping fee for the shipment.
11. PRODUCTION SCHEDULES: Production schedules will be established and followed by both the customer and OceanWild Design. In the event that production schedules are not adhered to by the customer, delivery dates will be subject to renegotiation. There will be no liability or penalty for delays due to state of war, riot, civil disorder, fire, strikes, accidents, action of government or civil authority, acts of God or other causes beyond the control of the provider. In such cases, schedules will be extended by an amount of time equal to delay incurred.
12. CUSTOMER-FURNISHED MATERIALS: Materials furnished by customers or their suppliers are verified by delivery tickets. OceanWild Design bears no responsibility for discrepancies between delivery tickets and actual counts. Customer-supplied paper must be delivered according to specifications furnished by OceanWild Design. The specifications will include correct weight, thickness, pick resistance and other technical requirements. Artwork, film, color separations, disks or other materials furnished by the customer must be usable by OceanWild Design without alteration or repair. Items not meeting this requirement will be repaired by the customer or by OceanWild Design at its current rates to be paid for by the customer.
13. OUTSIDE PURCHASES: Unless otherwise agreed in writing, all outside purchases as requested or authorized by the customer are chargeable.
14. CLAIMS/LIENS: Claims for defects, damages or shortages must be made by the customer in writing no later than ten (10) calendar days after delivery. If no such claim is made, OceanWild Design and the customer will understand that the job has been accepted. By accepting the job, the customer acknowledges that OceanWild Design's performance has fully satisfied all terms, conditions and specifications. OceanWild Design's liability will be limited to the quoted cost of defective goods, without additional liability for special or consequential damages.
15. LIABILITY DISCLAIMER OF EXPRESS WARRANTIES: OceanWild Design warrants that the work is as described in the purchase order. The customer understands that all sketches, copy, dummies and preparatory work shown to the customer are intended only to illustrate the general type and quality of the work. They are not intended to represent the actual work performed by OceanWild Design.
16. DISCLAIMER OF IMPLIED WARRANTIES: OceanWild Design warrants only that the work will conform to the description contained in the purchase order. OceanWild Design's maximum liability, whether by negligence, contract or otherwise, will not exceed the return of the amount invoiced for the work in dispute. Under no circumstances will OceanWild Design and/or the printing service be liable for specific, individual or consequential damages.
17. INDEMNIFICATION: The customer agrees to protect OceanWild Design from economic loss and any other harmful consequences that could arise in connection with the work. This means that the customer will hold OceanWild Design harmless and save, indemnify, and otherwise defend him/her against claims, demands, actions and proceedings on any and all grounds. This will apply regardless of responsibility for negligence.
18. COPYRIGHTS: The customer also warrants that the subject matter to be printed is not copyrighted by a third party. The customer also recognizes that because matter does not have to bear a copyright notice in order to be protected by copyright law, absence of such notice does not necessarily assure a right to reproduce. The customer further warrants that no copyright notice has been removed from any material used in preparing the subject matter for reproduction. To support these warranties, the customer agrees to indemnify and hold OceanWild Design harmless for all liability, damages and attorney fees that may be incurred in any legal action connected with copyright infringement involving the work produced or provided.
19. PERSONAL OR ECONOMIC RIGHTS: The customer also warrants that the work does not contain anything that is libelous or scandalous, or anything that threatens anyone's right to privacy or other personal or economic rights. The customer will, at the customer's sole expense, promptly and thoroughly defend OceanWild Design in all legal actions on these grounds as long as OceanWild Design promptly notifies the customer of the legal action; and gives the customer reasonable time to undertake and conduct a defense. OceanWild Design and its vendors reserve the right to use their sole discretion in refusing to print anything deemed illegal, libelous, scandalous, improper or infringing upon copyright law.
20. STORAGE: OceanWild Design 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 at additional charge. OceanWild Design is not liable for any loss or damage to stored material beyond what is recoverable by the provider's insurance coverage.
21. TAXES: All amounts due for taxes and assessment will be added to the customer's invoice and are the responsibility of the customer. No tax exemption will be granted unless the customer's Exemption Certificate (or other official proof of exception) accompanies the purchase order. If, after the customer has paid the invoice, it is determined that more tax is due, then the customer must promptly remit the required taxes to the taxing authority or immediately reimburse the company of any additional taxes paid.
22. TELECOMMUNICATIONS: Unless otherwise agreed in writing, the customer will pay for all transmission charges. OceanWild Design is not responsible for any errors, omissions or extra costs resulting from faults in the transmission.
23. PAPER: Prices quoted and any schedules submitted are subject to change in either price or availability of paper. Price of finished job will be based on the cost of paper at the time of shipment of paper. Most grades of paper are available on the terms of "price prevailing at time of shipment." Scheduled deliveries of paper are subject to change at the discretion of paper mills.
24. JURISDICTION: The parties agree that all disputes arising under this agreement shall be governed by Delaware Law. The parties further agree that the courts of the State of Delaware shall be the sole and exclusive jurisdiction and venue in which any dispute arising under this agreement shall be determined.
25. ACCEPTANCE OF TERMS: The signing of a quote or purchase order shall evidence both an understanding and acceptance of the Terms and Conditions and Trade Customs. All business conducted with OceanWild Design will be based upon the guidelines set forth in the Terms and Conditions and Trade Customs.