Printers’ Terms: What the Boilerplate Means and Where There’s Wiggle Room

March 2011
by Steve Gillen

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Printers’ Terms: What the Boilerplate Means and Where There’s Wiggle Room

by Steve Gillen

The first part of any printing order form is for the optimist. You place your order for 3,000 copies of a 1-color, 240-page, perfect-bound, softcover book in a common trim size at a specified cost per copy. Then you sit back and wait for flawless delivery 21 days hence.

But usually that order form has another part, perhaps appended to the printer’s credit application, that’s provided by pessimists. Sometimes labeled “Trade Customs,” sometimes “General Terms & Conditions,” the 23 or so paragraphs found under such a heading constitute a virtual tour of everything that has ever gone wrong with a printing job.

What I mean by this is that printers have, over time, learned from their worst experiences and developed terms that anticipate and provide for contingencies in ways that generally serve their interests.

In 1922, their collective resolve was formally adopted as a set of “Trade Customs of the Printing Industry.” Since then, these Trade Customs have been revised four times (most recently in 1985), expressly abandoned in 1994, and supplanted in 2002 with a set of Best Business Practices updated to address digital issues. But the 1985 Trade Customs are still in ubiquitous use.

What follows summarizes the terms they lay out. If you simply complete the printer’s order form, such terms will become a part of your deal just as they are written and just as if they had been individually discussed and negotiated.

I suggest that you read through the terms carefully, thinking about changes you might want. Your clout (or lack of clout) will matter, of course, if you decide to propose alterations. But even if you don’t, at least you won’t be shocked if your printer moves to enforce a provision.

A Quick Trip Through Standard Terms

Quotations. The provision that quotes are good for 30 days is designed to protect a printer from a company that accepts a long-forgotten, six-month-old quote with last year’s prices. If you are engaged in a complex competitive bid, you may need more than 30 days to complete the process.

Orders. A printer can accept an order and bind the customer but still have an out in the event of an unfavorable change of circumstances beyond the printer’s control or an unfavorable (and subjective) credit review. You, on the other hand, may have to pay to cancel.

Experimental work. The printer will get paid for provisional or preliminary work (e.g., proposed layouts and interim proofs) outside the quote at its then-current rates, and you will not be able to take this provisional work elsewhere without the printer’s okay.

Creative work. To the extent the printer provides prepress creative (read “copyrightable”) contributions or input, you will not own that, even if you complete and pay for the order. The final work will not belong exclusively to you, and you (and your investment in plate) will be locked to this printer for reprints.

Accuracy of specs. Make an error or omission in the specs you provide, and the printer gets to requote the job at a time when it may be too late for you to go elsewhere, and your bargaining position may be significantly compromised.

Preparatory materials. This is a rare one in the customer’s favor. It just acknowledges that items the customer supplies remain its exclusive property. The implication, of course, is that what the printer supplies remains the property of the printer.

Electronic manuscript. Back in the early 1990s, digital platforms were evolving and unstable, and the printers’ way of dealing with this uncertainty was to disavow any responsibility for loss or corruption of a file and to reserve the right to make additional charges for efforts to use or recover it. The Best Business Practices mentioned above consist largely of a list of production and technical issues that may arise in connection with the handling of digital assets, coupled with the repeated recommendation that the parties should agree in advance about how to allocate the risk and cost of resolving these issues when and if they arise.

Alterations. Depart from the original specs and you will pay (an amount to be determined). It’s best to employ a formal change-control procedure so that you are not surprised by the final bill.

Prepress proofs. On press, a mistake is made not singly but by the thousands. If the printer makes a mistake, it is your responsibility to catch it at the proof stage, when it is still just one mistake. Waive review or miss the error, and you own 3,000 copies of it.

Press proofs. Press time is a valuable commodity. Once the presses start on your job, it may be possible to do some fine tuning on the fly, but it will cost you to have them shut down and restarted. You need to ask for a press proof and be press-side at make-ready to review it in real time.

Color proofing. The color-proofing provision anticipates that there may be variations in color between proofs and production copies and, without limiting the range of variation, says the risk is yours.

Overruns and underruns. Some presses run at speeds approaching 100,000 signatures per hour. They obviously can’t be stopped on a dime. What you get can be as much as 10 percent less than or more than you ordered, and you will be charged for the number delivered. That said, there is a fair bit of variability in this provision as employed by printers, so if you can’t risk an underdelivery or can’t afford a final bill at 110 percent of the quote, say so and see what happens.

Customer’s property. The printer will carry insurance to cover your property while that property is with the printer, but will not say how much. And the printer’s liability is limited to the insured amount, whatever that may be. If you are counting on your printer’s insurance to cover a loss, ask about its coverage.

Delivery. The price in the printer’s quote assumes a single shipment to you and does not include the costs of shipping to your warehouse, which you will have to pay. If you require special handling or storage, an additional charge may be added to your quote. Since the cost and risk of loss will shift to you as soon as the books are picked up by the carrier, you should have the right to select the carrier.

Production schedules. As noted above, press time is valuable. Miss your scheduled slot with a late delivery or a late approval, and you may have to get back in line.

Customer-furnished materials. The printer will confirm its receipt of materials you supply with a delivery ticket. Check all tickets and notify the printer of any mistakes. Anything you supply must conform to agreed-upon specs, and any variation will be dealt with at your cost.

Outside purchases. Any outside cost that results from a request from you will be passed through to you. If you want advance notice of these costs, you need to ask for it.

Terms/claims/liens. This is another provision that may vary from printer to printer. Payment terms may be cash up front, net 14, net 30, or something else. Pay attention here, because there may be a fee for late payment. You will have 10 calendar days to make a claim for defective or short delivery, and claims not made within 10 days will be forfeited. The printer reserves the right to hold or place a lien on your shipment until you have paid for it.

Liability. The printer warrants only that the work will be as described in the order, so make sure that the order is revised to reflect any agreed change in specs. The printer disclaims all other warranties and caps its liability at the invoiced amount. If your business would suffer greatly from a failed or late delivery, you need to address this risk with business-interruption insurance or some other way.

Indemnification. Your liability, on the other hand, is not capped. If the printer is the target of a claim for copyright or trademark infringement, libel, invasion of privacy, or any other claim that results from printing your work, you will be responsible for defending it at your cost regardless of fault.

Storage. After delivery, your intermediate materials (once upon a time, manuscripts and original art; now more likely digital files) will be stored by the printer at your request, but subject to a to-be-determined charge. If your budget is tight, ask when the storage charges will start to accrue and what they will be.

Taxes. Sales taxes are your responsibility and will be added to your invoice unless you provide an exemption certificate.

Telecommunications. Obviously a holdover from the early 1990s, the telecommunications provision declares that any transmission charges will be added to your invoice and any errors in transmission (and the cost of fixing them) will be yours.

To Get Better Terms

If any of these terms are not the ones you would choose, note your changes on the front of the order and add a sentence there that says your order is conditional on the printer’s acceptance of those alternate terms. You may end up compromising before your printer is willing to accept the order, but you may also be surprised at the printer’s willingness to accept variations in the “Customary Terms.”

Alternatively, if you have your own form of purchase order, complete with your own customer-friendly set of terms and conditions (as recommended in “Add Power to Your Purchase Order Form: A New Year’s Resolution Worth Keeping” in the January issue), you may be able to use it instead of the printer’s form.

In response to your proposed alterations—or your tendered PO—you may hear that the Trade Customs are standard, settled terms universally accepted in the industry for nearly a century. Don’t you believe it. Yes, they are still employed by many printers in their printed and/or online order forms; but, as mentioned above, the Trade Customs were expressly abandoned by the representative industry groups more than 15 years ago and supplanted by a set of best practices in 2002.

And even the Best Business Practices are cautiously recommended (with a deferential nod to modern antitrust restrictions, I suspect) as a starting point and not a verbatim prescription.

As in other contexts, there is only one certainty: You won’t get what you don’t ask for.

Steve Gillen is a lawyer and partner in the intellectual property firm of Wood Herron & Evans and has focused his practice on publishing and media matters for 30 years. He is a member of IBPA and a frequent contributor to the Independent. Contact him at sgillen@whepatent.com or 513/241-2324.

 

 

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