Terms & Legal
BY USING PALE BLUE PENCIL'S SERVICES FOR IMAGE RETOUCHING YOU AGREE TO THESE TERMS AND CONDITIONS, WHICH FORM A LEGAL AGREEMENT BETWEEN PALE BLUE PENCIL AND YOU ("CLIENT")
"Service(s)" means the retouching and/or related digital or other services which the parties agree Pale Blue Pencil shall perform. "Image(s)" means the photographic or other images that are the subject of the Services.
Client is liable for full payment of all fees, expenses, charges and advances. Payment for Services shall be made in advance to the extent required by Pale Blue Pencil. Pale Blue Pencil may require a fifty percent (50%) deposit on large orders and, in any event, may require payment in full prior to delivery. Pale Blue Pencil's pricing is subject to change without notice. Pale Blue Pencil will Invoice Client for Services. Payment of the Invoice is due no later than ten (10) business days after the date of the Invoice. If actual charges are greater than the amount of the Invoice, Pale Blue Pencil will invoice Client for the balance, with payment due upon receipt of invoice by Client. All files submitted to Pale Blue Pencil are subject to system time charges. System time includes digital spotting, CD/DVD creation, sorting files, bad downloads, etc. If Client fails to pay the Invoice in full within the time specified, Pale Blue Pencil may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.
Retouched files shall generally be delivered in the time frame discussed by Pale Blue Pencil and Client. Turnaround is subject, among other things, to Client cooperation and availability of Client to review proofs in a timely manner. Turnaround may also change due to Pale Blue Pencil's workload and machine maintenance. Rush services are available for an additional charge. Pale Blue Pencil makes reasonable efforts to meet Client's needs regarding turnaround/delivery time, but shall not be in breach of this Agreement if files are not delivered in the time frame discussed by the parties. Client should check with Pale Blue Pencil on turnaround/delivery time before making customer commitments.
Pale Blue Pencil applies color treatments to Images based on its judgment as to what matches the needs of the Image. Because color is subjective, and not a technical specification, Pale Blue Pencil shall not revisit or revise job files based on color alone.
In the event Client breaches any term of the Agreement, and such breach is not cured within ten (10) days after being given notice of such breach by Pale Blue Pencil, Pale Blue Pencil may immediately terminate the Agreement. Client may not terminate the Agreement early without the consent of Pale Blue Pencil. In the event of early termination, Client shall not be entitled to refund of any fees, expenses or charges paid prior to termination, even if the service for which payment was made, has not been performed or completed. In the event of early termination by Client prior to payment, Client will be liable for paying Pale Blue Pencil for all work completed and any applicable shipping and FTP charges.
6. Force Majeure.
Pale Blue Pencil shall not be in default by reason of its delay in performance of, or failure to perform, in whole or in part, any of its obligations hereunder, if such delay or failure results from occurrences beyond its reasonable control.
7. Images and Other Materials.
All Images and other materials provided by Client to Pale Blue Pencil, including but not limited to negatives, transparencies, digital files, proofs, previews, drawings, conceptual sketches, concept presentations and otherwise shall be the exclusive property of Client. Layered files and PSD's developed and created by Pale Blue Pencil in connection with the Services are confidential work product of Pale Blue Pencil and shall not be delivered to Client. Pale Blue Pencil retains all intellectual property and other rights in and to its methods and procedures used to create layered files and PSD's, and Client acknowledges that the work files and methods used therein contain trade secrets of Pale Blue Pencil. If Client gains access or possession to layered files or PSD's notwithstanding the above, Client agrees that it shall not use or disclose the contents of such, or the methods and processes used therein, to any third party.
8. Copyright and Reproductions.
Client or its customers shall own the copyright in all retouched Images and shall have the exclusive right to make reproductions. Pale Blue Pencil shall only make reproductions of the Images if such reproductions are for the Client, or for the portfolio, social media, samples, self-promotion or office/studio display of Pale Blue Pencil, which Client hereby authorizes on behalf of the copyright owner.
Pale Blue Pencil shall deliver a proof to Client for each Image retouched. After delivery of proofs, Client may request one round of minor changes at no additional cost. In the event a remake is requested thereafter, Client shall pay 50% of the original fees for the job, so long as Client has requested such remake and delivered all necessary files (e.g. RAW file, original materials, JPEG reference shots with written changes) within three (3) weeks of the Invoice date.
10. Exclusive Remedy: Lost/Damaged Images.
Client shall not provide Pale Blue Pencil with original prints, negatives or transparencies unless it retains duplicate originals in its possession. It is the responsibility of Client to retain in its possession an original and/or digital copies of each Image submitted to Pale Blue Pencil. If Images or image files become lost or unusable, while in the possession of Pale Blue Pencil, by reason of defects, damages, equipment malfunction, processing or any other technical error, prior to delivery of such to Client, then Client's sole and exclusive remedy at law or in equity, under this Agreement or otherwise, shall be for Pale Blue Pencil to perform appropriate service(s) again without additional fees, provided Client has paid all fees, expenses and charges in connection with the initial services or any remake period. In all other cases, in the event of loss or damage to Images or Image files/media, the liability of Pale Blue Pencil, if at fault, shall be limited to the actual price of the materials provided, e.g. the cost of the hard drive, film stock or other media, without reference to or consideration of the copyright value of the Images contained thereon. The foregoing limitations of liability apply to any and all Images submitted by Client to Pale Blue Pencil, even if loss or damage thereto is through the fault or negligence of Pale Blue Pencil. If any court or arbitrator determines that notwithstanding the limitations of liability contained herein, Pale Blue Pencil is liable for loss or damage to an original Image, Pale Blue Pencil shall not be liable for an amount in excess of $500 per original Image.
PALE BLUE PENCIL PROVIDES NO COPYRIGHT, MODEL, PROPERTY, TRADEMARK OR OTHER SUCH RELEASES FOR ANY IMAGE DELIVERED BY PALE BLUE PENCIL TO CLIENT HEREUNDER. CLIENT IS SOLELY RESPONSIBLE FOR OBTAINING ANY AND ALL COPYRIGHT, MODEL, PROPERTY, TRADEMARK OR OTHER SUCH RELEASES AS MAY BE NECESSARY TO AVOID CLAIMS BY THIRD PARTIES IN CONNECTION WITH USE OF THE ORIGINAL AND RETOUCHED IMAGES BY IT AND ITS CUSTOMERS
12. Client Representations and Warranties.
Client represents and warrants to Pale Blue Pencil as follows: (i) Client has the right, power, and authority necessary to enter into the Agreement and fully perform its obligations hereunder; (ii) Client possesses all necessary rights to the Images in copyright or otherwise, in order to provide them to Pale Blue Pencil in connection with the Services; (iii) Client has retained an original copy of all Images submitted to Pale Blue Pencil; and (iv) Client acknowledges that Evergreen does not convey to Client any copyrights, permissions, clearances, releases, or other rights related to the Images or persons, entities, private properties, products, trademarks, or brands depicted in Images prior to or after the Services have been performed, all of which Client is obliged to obtain, if necessary.
13. Limitation of Liability/Warranty Exclusion.
If Pale Blue Pencil fails to perform any of its material obligations, Client's sole and exclusive remedy, at law or in equity, under this Agreement or otherwise, shall be for Pale Blue Pencil to perform appropriate service(s) again without additional fees, provided Client has paid all fees, expenses and charges in connection with the initial services or any remake period. If Images are lost or damaged while in the possession of Pale Blue Pencil, Client's sole and exclusive remedy, at law or in equity, under this Agreement or otherwise, shall be as set forth under Exclusive Remedy: Lost/Damaged Images. Should Client's exclusive remedy in any case be held to fail of its essential purpose, Evergreen's entire liability shall not exceed the aggregate fees actually paid to Pale Blue Pencil hereunder. UNDER NO CIRCUMSTANCES SHALL PALE BLUE PENCIL BE LIABLE TO CLIENT FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES ARISING FROM THE AGREEMENT, SERVICES, IMAGES, OR ACTS OR OMISSIONS OF PALE BLUE PENCIL, EVEN IF PALE BLUE PENCIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PALE BLUE PENCIL MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICES OR IMAGES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
All disputes arising under this Agreement shall be submitted to binding arbitration before the American Arbitration Association in Seattle, Washington and the arbitration award may be entered for judgment in any court having jurisdiction thereof. The prevailing party shall be entitled to their actual attorneys' fees, costs and expenses.
15. Miscellaneous Legal Provisions.
Contract sets forth the entire understanding and agreement between Pale Blue Pencil and Client regarding the Services and Images. This Contract supersedes any and all prior representations and agreements regarding such, written or verbal, and also supersedes any Purchase Order or other contract provided by Client to Pale Blue Pencil hereafter. Any signature by Pale Blue Pencil on any Client Purchase Order or other contract shall only be for administrative purposes to permit Client to process payment to Pale Blue Pencil, and shall not bind Pale Blue Pencil to the terms and conditions contained on such Purchase Order or other contract, even if such terms state otherwise. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of Washington, excluding its conflict of laws rules.