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)
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
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
(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
(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
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.