STANDARD TERMS & CONDITIONS OF SERVICE - Kodak

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STANDARD TERMS & CONDITIONS OF SERVICE - Kodak

These terms and conditions apply to the purchase of the KODAK VISION2 16

mm Film Kit (the “Kit”) from Eastman Kodak Company (“Kodak”) and the

provision of certain services by a Participating Lab (defined in Section 1(c)

below).

1. DEFINITIONS. The terms defined below shall have the meanings stated:

(a) Customer - the individual, educational institution, corporation or other

business entity that purchases the Kit from Kodak.

(b) Element - all Rolls (defined below), film negatives, videotapes, video

cassettes, cuts and trims, videotape dubs, magnetic film or other material, in

any medium, containing any audio recording or visual image.

(c) Participating Lab – the film laboratory listed on the Kit internet site

(www.kodak.com/go/studentkits) that the Customer submits his or her Rolls to

for Services (defined in Section 3(b) below).

2. QUALIFIED CUSTOMERS. To be eligible to purchase the Kit and

obtain the related services, the Customer must be a high school, college or

university with a formal film program (a “Film School”) or a currently enrolled

student (age 18 years of age or older) or faculty member in a Film School.

Customer agrees to provide, as the case may be, a copy of a valid student or

faculty ID from the Film School. If Customer is a Film School, Customer

acknowledges that it purchased the Kit for use by its faculty and students and

not for resale to others, and Customer hereby agrees to distribute the Kit only

to its faculty and currently enrolled students. Any currently enrolled student

(age 18 years of age or older) or faculty member in a Film School who

acquires the Kit from the Film School will be deemed to be Customer

hereunder. Customer agrees that it will not transfer the Rolls to, or submit the

Rolls to the Participating Lab on behalf of, any person or entity that is not

eligible under this Section 2 to purchase the Kit and to obtain the related

services.

3. FILM AND SERVICES.

(a) The Kit. The Kit includes the following: (i) five (5) On Core/Winding

B/400 ft. rolls of 16 mm film from Kodak’s Vision2 Color Negative film

product line selected by Customer at the time of purchase (the “Rolls”), (ii)

one (1) processing and transfer certificate (the “Certificate”) to be submitted to

the Participating Lab for Services (defined below), (iii) one (1) instruction

booklet and, (iv) other collateral.

(b) Services. The film processing services to be performed for Customer by

the Participating Lab for each Roll include (i) normal, push or pull film

processing as selected by Customer and (ii) so long as Customer includes a

properly exposed gray card and frame chart with each Roll to be processed,

one (1) light unsupervised telecine transfer to one (1) output, either Mini DV or

DV Cam media, as selected by Customer on the Certificate (collectively, the

“Services”). Customer is responsible for delivering or shipping the Rolls to the

Participating Lab for processing and must contact the Participating Lab for

shipping information prior to shipping the Rolls. Postage for shipping the

Rolls to the Participating Lab is not included in the Kit price. The

Participating Lab, however, will incur the transportation costs to ship the

processed Rolls to the Customer. All Rolls from the Kit must be submitted for

processing at one time. Shipment of the Rolls is at Customer’s sole risk. The

Services included with the Kit do not include audio related services. Charges

for Services are included in the Kit price only for the Customer’s submission

of the rolls actually provided with the Kit that are submitted to the

Participating Lab for Services no later than one (1) year following the date of

purchase listed on the Certificate included with the Kit. Customer must submit

the Certificate to the Participating Lab for Services along with the Rolls. If

Customer (i) mixes the Rolls with film purchased separately or as part of a

different Kit, (ii) requests Services to be performed outside of the normal

working hours of the Participating Lab, (iii) submits the Rolls for Services

after the one (1) year anniversary of the date of purchase listed on the

Certificate included with the Kit, (iv) requests film processing and transfer

services other than the Services, or (v) fails to submit the Certificate with the

Rolls, Customer’s payment of additional processing charges may be required

prior to completion of the Services. Customer should contact the Participating

Lab for information on additional charges and the availability of additional or

different services. Subject to scheduling availability, the Services will

typically be completed within five (5) business days of the Participating Lab’s

receipt of the Rolls.

4. LIMITED WARRANTY AND LIMITATION OF LIABILITY.

(a) Standards of Service. Kodak, the Participating Lab and their respective

affiliates each use equipment and methods it deems advisable, and makes

KODAK VISION2 16 mm Film Kit

reasonable efforts to meet estimated delivery dates, subject to the availability

of personnel, equipment and materials, obligations to other customers, and

other factors. Customer understands and agrees that delivery of shipping dates

are estimates, and subject to change without notice to Customer.

(b) Customer to Insure. Neither Kodak nor the Participating Lab is an insurer,

and their charges related to the Kit are based solely upon the value of the film

and related services. The Kit charges have no relation to the value of the

Elements and Customer bears the entire risk of loss, damage, destruction or

delay. Customer has sole responsibility for insuring against all such risks,

including interruption of its business and any indirect, incidental, consequential

or special damages.

(c) KODAK’S LIMITED WARRANTY AND LIABILITY. KODAK

FILMS WILL BE REPLACED IF DEFECTIVE IN MANUFACTURE,

LABELING, OR PACKAGING, OR IF DAMAGED OR LOST BY KODAK

OR ANY KODAK SUBSIDIARY COMPANY. A PLUS OR MINUS 10

PERCENT FILM QUANTITY VARIATION APPLIES TO ALL ROLLS

INCLUDED IN THE KIT. SINCE COLOR DYES MAY IN TIME

CHANGE, COLOR FILMS WILL NOT BE REPLACED FOR, OR

OTHERWISE WARRANTED AGAINST, ANY CHANGE IN COLOR.

THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS AND

CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE

TO STATE. KODAK WILL HAVE NO LIABILITY WHATSOEVER TO

CUSTOMER WITH RESPECT TO THE SERVICES INCLUDED WITH

THE KIT OR ANY OTHER SERVICES PERFORMED BY THE

PARTICIPATING LAB FOR THE CUSTOMER.

(d) PARTICIPATING LAB’S LIMITED WARRANTY AND

LIABILITY. IF ANY ELEMENTS SENT BY CUSTOMER TO THE

PARTICIPATING LAB ARE LOST, DESTROYED, DAMAGED,

MISROUTED OR MISLABELED BY THE ACT OR OMISSION OF THE

PARTICIPATING LAB, OR THEIR RESPECTIVE EMPLOYEES,

SUBCONTRACTORS OR AGENTS, THE PARTICIPATING LAB’S AND

KODAK’S LIABILITY SHALL BE LIMITED TO THE REPLACEMENT

OF BLANK OR UNRECORDED ELEMENTS, THE CORRECTION OF

ERRORS IN SERVICE, LABELING OR SHIPMENT, OR THE PROVISION

OF CONFORMING SERVICES, AS THE PARTICIPATING LAB AND/OR

KODAK MAY DEEM APPROPRIATE. THIS WARRANTY GIVES

CUSTOMER SPECIFIC LEGAL RIGHTS AND CUSTOMER MAY HAVE

OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE

PARTICIPATING LAB WILL HAVE NO LIABILITY WHATSOEVER TO

THE CUSTOMER WITH RESPECT TO ANY DEFECTS IN

MANUFACTURING, LABELING OR PACKAGING OF THE ROLLS.

(e) CLAIMS. CUSTOMER MUST SUBMIT ANY CLAIM THAT THE

FILM PROVIDED IN THE KIT IS DEFECTIVE, AND THE ROLLS THAT

ARE THE SUBJECT OF SUCH CLAIM, TO KODAK IN WRITING

WITHIN 60 DAYS AFTER THE CUSTOMER LEARNS, OR SHOULD

HAVE LEARNED OF THE POTENTIAL CLAIM. ALL CLAIMS

SUBMITTED TO KODAK MUST BE SENT TO THE FOLLOWING

ADDRESS: EASTMAN KODAK COMPANY, 343 STATE STREET,

ROCHESTER, NY 14650. CUSTOMER MUST SUBMIT ANY CLAIM OF

ERRORS IN SERVICE OR CONCERNING THE LOSS, DAMAGE OR

DESTRUCTION OF ELEMENTS, AND THE ELEMENTS THAT ARE THE

SUBJECT OF ANY SUCH CLAIMS, TO THE PARTICIPATING LAB IN

WRITING WITHIN 60 DAYS AFTER THE CUSTOMER LEARNS, OR

SHOULD HAVE LEARNED OF THE POTENTIAL CLAIM. ALL CLAIMS

SUBMITTED TO THE PARTICIPATING LAB MUST BE SENT TO THE

SAME ADDRESS THAT THE ROLLS WERE SENT FOR PROCESSING.

NEITHER KODAK NOR THE PARTICIPATING LAB WILL HAVE ANY

LIABILITY WHATSOEVER UNLESS CLAIMS ARE SUBMITTED TO

KODAK OR THE PARTICIPATING LAB, AS THE CASE MAY BE, IN

ACCORDANCE WITH THIS SECTION 4(E).

(f) DISCLAIMER OF WARRANTY. EXCEPT AS SET FORTH IN

SECTION 4(C) AND SECTION 4(D) ABOVE, KODAK AND THE

PARTICIPATING LAB DISCLAIM ALL EXPRESS OR IMPLIED

WARRANTIES, STATUTORY OR OTHERWISE, INCLUDING ANY

IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A

PARTICULAR PURPOSE. NEITHER KODAK NOR THE

PARTICIPATING LAB ASSUME ANY RESPONSIBILITY, TRANSFER,

DUBBING, RE-RECORDING, PROCESSING OR OTHER SERVICES. TO

THE EXTENT THAT THE EXPRESS AND/OR IMPLIED WARRANTIES

REFERENCED ABOVE CANNOT BE DISCLAIMED BY LAW, THE

DURATION OF ANY SUCH WARRANTIES SHALL BE LIMITED TO

ONE YEAR FROM THE DATE OF PURCHASE. SOME STATES DO NOT


ALLOW A LIMITATION ON HOW LONG AN IMPLIED WARRANTY

LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

(G) LIMITATION OF DAMAGES. NEITHER KODAK NOR THE

PARTICIPATING LAB SHALL HAVE ANY LIABILITY FOR LOST

PROFITS, DELAYS, INDIRECT, INCIDENTAL, CONSEQUENTIAL,

SPECIAL OR PUNITIVE DAMAGES ARISING FROM THE DEFECTS IN

THE ROLLS, THE LOSS, DAMAGE OR DESTRUCTION OF ELEMENTS,

THE ACTS OR OMISSIONS OF KODAK AND/OR THE PARTICIPATING

LAB AND THEIR RESPECTIVE EMPLOYEES, SUBCONTRACTORS

AND AGENTS, OR ANY OTHER CAUSE. KODAK AND THE

PARTICIPATING LAB’S MAXIMUM LIABILITY FOR DAMAGES TO

CUSTOMER SHALL NOT EXCEED THE PURCHASE PRICE PAID BY

CUSTOMER FIR THE KIT. SOME STATES DO NOT ALLOW THE

EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL

DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

5. PRICE AND PAYMENT FOR ADDITIONAL SERVICES.

(a) Standard Rates and Prices. Charges for the Services are included in the

Kit price, provided, however, that if Customer submits the Rolls to the

Participating Lab for Services after the one (1) year anniversary of the date of

purchase listed on the Certificate included with the Kit or fails to submit the

Certificate with the Rolls or requests processing and transfer services other

than the Services, Customer agrees to pay the Participating Lab’s standard

rates and prices, minimum charges, setup charges and standby times as

adjusted from time to time, for all services requested with respect to such

Rolls, plus applicable shipping, sales, use and other taxes imposed upon sales

to Customer, whether or not such taxes appear on the original invoice. Prices

and rates are subject to increase at any time without notice. Customer has sole

responsibility for payment.

(b) Overtime. The Kit price and the Participating Lab’s standard rates and

prices are based upon normal working hours. If Customer requests that any

services be performed on weekends, holidays or otherwise outside of the

Participating Lab’s normal working hours, Customer agrees to pay, in addition

to the price of the Kit and, if applicable, the Participating Lab’s standard rates

and prices, the Participating Lab’s standard overtime charges, in effect from

time to time for such overtime service.

(c) Cancellations. Customer agrees to pay for facilities and services that it

schedules but does not use in accordance with the policies and procedures of

the Participating Lab. Customer should contact the Participating Lab for

information on the Participating Lab’s cancellation charges, and policies and

procedures.

(d) Terms of Payment. The Participating Lab’s invoices are payable upon

receipt. The Participating Lab may from time to time, in its sole discretion,

permit Customer to purchase services on account, but reserves the rights to

require full or partial payment in advance, or upon delivery, as it may deem

advisable. Amounts due but not paid within 30 days after receipt of invoice

shall bear interest at one and one-half percent (1.5%) per month, or the

maximum rate permitted by law, whichever is lower.

(e) Security Interest. To secure its obligations to the Participating Lab in

connection with all past, present or future orders, Customer hereby grants the

Participating Lab security interest in all Elements (including all copyrights)

delivered to the Participating Lab and agrees, upon request, to execute such

financing statements (Form UCC-1) and other documents as the Participating

Lab may reasonably require to perfect its security interest. Customer agrees

that the Participating Lab may, in its discretion, require payment of all amounts

owed to the Participating Lab before delivering any Elements. The

Participating Lab shall have all rights of a secured creditor, in addition to all

other rights provided by applicable law or these terms and conditions.

Customer agrees that upon breach of these terms and conditions, the

Participating Lab, or any other party acquiring any right, title or interest in or

to any Element at Public or private sale, shall have all of Customer's right, title

and interest in or to such Element, including, without limitation the

unrestricted right to distribute, exhibit and otherwise exploit such Elements in

all media for its own account.

(f) Taxes. Sales, use and other taxes measured by sales or receipts are not

included in the price of the Kit. Where applicable, such taxes will be billed if a

valid exemption certificate is not furnished. Where a valid exemption

certificate is furnished, tax will not be billed unless Kodak or the Participating

Lab, as the case may be, determine that the purchase will be used in a taxable

manner. Omission of tax should not be construed as a basis for exemption. If

used in a taxable manner and no tax was billed by Kodak or the Participating

Lab, the Customer is required to remit applicable taxes directly to the taxing

authorities.

6. ELEMENTS.

(a) Ownership. Customer represents and warrants that it is the sole owner of

the Elements, holds all copyrights, has the rights to engage the Participating

Lab to perform services on the Elements and to possess, use exhibit, distribute

and otherwise exploit the Elements. All intermediate materials used by the

Participating Lab remain the property of the Participating Lab.

(b) No Infringements or Violations. Customer represents and warrants that

the Elements do not infringe or violate any personal, literary, commercial or

intellectual property rights of any other person or business entity.

(c) Technical Requirements. Customer will comply with all reasonable

technical requirements that the Participating Lab may impose.

7. CUSTOMER INDEMNITY. Customer agrees to indemnify, defend and

hold Kodak and the Participating Lab, and their respective officers, directors,

shareholder, employees, agents and subcontractors harmless from and against

any and all claims, demands, causes of action, losses, damages or other liability

(including reasonable attorneys' fees) (collectively, "Claims") that arise from or

relate in any way to breaches of Customer's legal or contractual obligations,

including the foregoing representations and warranties. Claims, include, but are

not limited to, claims of libel, slander, defamation, invasion of privacy,

misappropriation, disclosure of confidential information, and copyright,

trademark and patent infringement.

8. RIGHT TO REFUSE SERVICE. The Participating Lab reserves the

rights to cease or refuse service if:

(a) the Participating Lab believes in good faith that any Elements are indecent,

obscene, pornographic, defamatory, degrading, unlawful, likely to inflame passion

or prejudice, or otherwise likely to expose the Participating Lab or Kodak

to potential civil or criminal liability; or

(b) Customer has failed to pay any amounts owed to the Participating Lab

when due, or the Participating Lab believes in good faith that Customer is

unlikely to pay future Participating Lab invoices when due; or

(c) the Participating Lab believes in good faith that the Elements are old,

shrunken, imperfect, damaged or defective; or

(d) Customer fails to comply with these terms and conditions and the

instructions included in the Kit with respect to the submission of the Certificate

and/or Elements to the Participating Lab for Services.

9. STORAGE. The Participating Lab will store Elements without charge until

completion of work. Thereafter, storage of Elements is subject to the

Participating Lab’s policies and procedures and Customer agrees to pay the

Participating Lab’s normal storage charges. Customer should contact the

Participating Lab for information on its policies and procedures, and storage

charges.

10. REFUNDS AND RETURN POLICY.

(a) Unused Services. There is no refund available for unused Services.

(b) Return of Kits. All Kits are sold without return privileges. Allowance of a

return is at Kodak’s sole discretion. A return will be accepted only after prior

authorization by Kodak and subject to compliance with the following terms and

conditions: When contacting Kodak for return authorization the Customer must

provide the invoice number and date of the shipment. Except where Kits were

damaged in transit, returns must be in clean, factory packaging, in unmarked

condition. While the factory packaging for the Kits may have previously been

opened, the factory packaging for the Rolls must not have been opened. All

returns must be shipped prepaid unless otherwise specified by Kodak, returned

within 48 hours of purchase, and returned to the location from which they were

shipped or picked up. In instances where purchases were made on the last

business day of the week, the Kits must be returned on the next Kodak business

day. The price on the original invoice will be the basis for credit for any

accepted return. When returning Kits, original paperwork, with invoice/receipt

information, must be supplied with return. Kodak may refuse to issue a credit if

Customer fails to comply with the foregoing terms and conditions in connection

with the return of a Kit. Kodak contact information for purposes of obtaining a

Kit return authorization is provided with the Kit.

11. GENERAL PROVISIONS.

(a) Entire Agreement. These terms and conditions and the instruction booklet

included with the Kit incorporate the entire agreement concerning all parties,

supersede any prior or contemporaneous agreement, understanding or

statement concerning all parties, and may not be amended without written

agreement of authorized representatives of Customer, Kodak and the

Participating Lab. For the avoidance of doubt, a separate agreement between

Kodak and the Participating Lab relating to the subject matter of these terms

and conditions, but which does not affect Customers rights or obligations under

these terms and conditions, exists.


(b) Severability. The invalidity or partial invalidity of any term, provision or

condition of these terms and conditions shall not affect the validity of any other

term, provision or condition.

(c) Waivers. Kodak or the Participating Lab’s failure to insist upon Customer's

performance of any of its obligations shall not be construed as a waiver of that

right or remedy.

(d) Cumulative Remedies. Kodak and the Participating Lab’s rights and

remedies shall be cumulative and not exclusive, and the exercise of any right or

remedy shall not affect its right to enforce one or more other remedies.

(e) Governing Law, Disputes. These terms and conditions shall be governed

by and construed in accordance with the laws of New York.

(f) Attorneys' Fees. In any action between the parties, the prevailing party

shall be entitled to recover its reasonable attorneys' fees and costs, in addition

to its damages.

12. ELECTRONIC COMMUNICATIONS. Kodak and/or the Participating

Lab may send email communications to Customer related to these terms and

conditions and the products delivered and services performed hereunder.

Customer agrees that all such email communications from Kodak and/or the

Participating Lab to Customer or its employees are transactional or relationship

messages within the meaning of the United States CAN-SPAM Act of 2003.

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