Services Terms and Conditions
Services Provided, Shipping and Return Policy, and Claims
KODAK Digitizing (“KODAK Digitizing,” “we,” “us,” or “our”) oversees the website, kodakdigitizing.com (“Site”) and related services (collectively, our “Services,” further explained the next paragraph). By placing an order to purchase our Services (an “Order”), you (“Buyer,” “you,” or “your”) agree to these Service Order Terms and Conditions (“Service Order Terms”).
KODAK Digitizing agrees, on a non-exclusive basis, to provide Services to Buyer, and Buyer shall, on a non-exclusive basis, purchase the Services from KODAK Digitizing. For purposes of clarity, Buyer understands that KODAK Digitizing receives from Buyer various personal items, including but not necessarily limited to personal (home-made) movies, film reels, photos, tapes, and audio recordings (“Materials”). KODAK Digitizing takes the Materials, organizes and digitizes them (“Digitized Materials”) and saves the Digitized Materials onto a thumb drive, a DVD, or a server in the cloud. KODAK Digitizing offers customer service and various communications with each Buyer during this processes. Additionally, KODAK Digitizing provides tracking, barcoding, and real-time updates to Buyers. All of the foregoing services provided by KODAK Digitizing are understood variously and collectively as the “Services.”
When a Buyer makes an Order, KODAK Digitizing will send the Buyer a Confirmation e-mail with an order number (“Order Confirmation”), detailing the Materials provided and Services to be performed. For purposes of clarity, the Buyer agrees and acknowledges that these Service Order Terms prevail over any terms or conditions contained in any Order Confirmation, or other documentation, and these Service Order Terms expressly exclude any terms or variations issued by Buyer whether orally or in writing before, during, and after the provision of Services.
Unlawful Order Submissions and/or Materials
By submitting an Order, you represent and warrant the following to KODAK Digitizing: (a) no Materials submitted to KODAK Digitizing are submitted in violation of any copyright laws; (b) any Materials submitted were either created by you, you have the right to permit KODAK Digitizing to perform duplication services, or you have the permission of the copyright owner to duplicate the submitted Materials; and (c) no Materials submitted are libelous, obscene, offensive, threatening, defamatory, abusive, hateful, or otherwise violate state or federal law or the rights of a third party.
Furthermore, you agree and acknowledge that due to the volume of its operation, KODAK Digitizing cannot fully inspect all the information within the Materials submitted to it. However, there are instances in which KODAK Digitizing may discover that the transmission of information to KODAK Digitizing, the content of such information, and/or your specific request for services with regard to such information within the Materials violates state and/or federal law. In the event of such discovery, KODAK Digitizing will take any and all steps necessary to comply with its own obligations under applicable law, including, but not limited to, reporting to and complying with relevant authorities.
Risk of loss: Shipping
KODAK Digitizing does not provide any services related to shipment of the Materials or Digitized Materials to or from its offices. For this reason, any Services purchased from KODAK Digitizing are made pursuant to a shipment contract. This means that the risk of loss for your Materials passes to KODAK Digitizing only when the Materials arrive at our offices, and the risk of loss passes back to you when we deliver your Materials and/or Digitized Materials to the shipping carrier (FedEx, USPS, or other common carrier). BY SHIPPING ANY MEDIA TO KODAK DIGITIZING, YOU ACKNOWLEDGE THAT KODAK DIGITIZING IS NOT RESPONSIBLE FOR LATE, LOST, DAMAGED OR MISDIRECTED MAIL.
KODAK Digitizing accepts returns within thirty (30) days of completion of an Order. An Order is completed (and the thirty (30) days starts) from the date KODAK Digitizing hands a product to the shipping carrier for shipment to you. Though we are not obligated to do so, we sometimes take returns past the thirty (30) day window at our sole discretion. If you believe you are entitled to a return even though the thirty (30) days has run, please contact us to let us know.
Occasionally, Materials may arrive at our offices in an unplayable or defective condition. If that happens, we will provide a review of the Materials, a re-transfer of the Materials, or pay the shipping to return the Materials to you (as conditions allow). We do not charge any additional fees for review, return shipment, or re-transfers.
If Materials are not transferrable due to age, fragility, format, damage, or any other condition we are not responsible for, your original Materials will be returned. In that case, though, KODAK Digitizing does not cover the cost of shipping a return order back to our facilities.
Added-Safety Protection Package
KODAK Digitizing cannot and does not guarantee that your Materials will not be accidentally damaged while in the possession of the shipping carrier, nor does KODAK Digitizing assume the risk of loss for your Materials while it is in transit. Instead, the risk of loss remains with you during transit, and you bear all responsibility of loss or damage of your original content until it is received by KODAK Digitizing.
If you have purchased the Added-Safety Protection Package, your shipment to KODAK Digitizing is guaranteed with the $500 or $1,000 in Added-Safety Protection, which offers limited protection for complete package loss or misdirection while in the possession of the shipping carrier. The return shipment from KODAK Digitizing to you is guaranteed with thirty (30) days on-site digital backup as Added-Safety Protection in the unlikely event of complete package loss or misdirection while in the possession of the shipping carrier. You further acknowledge and agree that the safe handling guarantee is a reasonable approximation of the damages that would be suffered by you from the loss of your entire order and is not a penalty.
The Added-Safety Protection Package is not insurance and KODAK Digitizing is not an insurer. You acknowledge that the Added-Safety Protection Package is optional, and if you choose the Added-Safety Protection Package, it only covers complete package loss or misdirection while in the possession of the shipping carrier. The Added-Safety Protection Package is not a substitute for improper packing and the plan will not cover damage to media that were not packed according to KODAK Digitizing's Welcome Guide with Instructions. Our recommendations for packing your media can be found at: https://kodakdigitizing.com/pages/how-it-works
Risk of Loss: Missing, Damaged, Misplaced, or Mismatched Materials
KODAK Digitizing understands and appreciates the sentimental value of your Materials. Helping our Buyers relive, preserve, and enjoy their Materials through our digitization Services is one of our most important goals. From time to time, a Buyer might allege that KODAK Digitizing has misplaced an item the Buyer purportedly included in the Buyer’s Materials, that KODAK Digitizing has damaged or destroyed Buyer’s Materials, or that KODAK Digitizing has placed someone else’s Materials within Buyer’s Materials or Digitized Materials. Every once in a while, we become aware that a Buyer thinks it has sent more Materials to KODAK Digitizing that it actually did send, only to realize the allegedly missing Materials are still at home with the Buyer.
We have a sophisticated system for receiving Materials, applying barcodes to those Materials, and tracking Materials throughout the provision of our Services. We also take care to handle all Materials that we receive with due care in a commercially reasonable manner. That said, no system is perfect, and you acknowledge that we might misplace or mismatch your Materials. It is also possible that your Materials might become damaged during the digitization process. This can happen through no fault, or negligence, of our own, particularly when the Materials you have sent to us are old media files that have already begun decaying before we have received them.
YOU UNDERSTAND THAT THERE IS INHERENT RISK IN SUBMITTING YOUR MATERIALS TO KODAK DIGITIZING, AND YOU RECOGNIZE THAT YOU MAY NOT RECEIVE YOUR MATERIALS BACK, AND/OR YOU MAY NOT RECEIVE YOUR MATERIALS BACK IN THE SAME CONDITION THAT THEY WERE SENT TO US. BY PLACING AN ORDER WITH KODAK DIGITIZING, YOU ACCEPT THIS RISK.
If you send us a notification letting us know that you believe we have misplaced, damaged, or mismatched your Materials, after they were received by us and in our possession, we will review your notification carefully (a “Notification of Loss”). Failure to provide KODAK Digitizing with a Notification of Loss within thirty (30) days of your receipt of your Materials and Digitized Materials as returned to You shall be deemed a waiver of your right to file a Notification of Loss and shall conclusively demonstrate your acceptance of the Materials and Digitized Materials as returned to You.
You agree to be bound by our review and determination. As further outlined below, KODAK Digitizing makes no warranty and disclaims all potential liability, with regard to all aspects of our Services in the handling of your Materials.
We may determine that we never received your Materials; that we did not cause damage to your Materials; or that the damage to your Materials during the digitization process was through no fault of KODAK Digitizing. We may also determine that we have an obligation to you. Once we have made our determination, we will provide a written response to your Notification of Loss. Depending on the situation, we may also choose to replace your Material(s) by offering you an equivalent type of blank media, or the cost of such blank media. We may choose to issue a refund for your Order; we may choose to compensate you for loss or damage; or we may decline, entirely, to issue a refund or provide any compensatory monies.
In the event that we have provided you with mismatched Materials, you agree to return the mismatched Materials to us within fifteen (15) days of your receipt of the return shipping instructions. The costs of shipping will be paid by KODAK Digitizing.
IN ANY CASE, YOU AGREE TO ACCEPT THE RISK OF SENDING YOUR MATERIALS TO US, AND FURTHER, YOU HEREBY AGREE TO BE BOUND TO OUR DETERMINATION AND ASSESSMENT OF YOUR NOTIFICATION OF LOSS. You agree that you will not disparage, libel, or defame KODAK Digitizing, and you agree that you will not take any steps to cause reputational damage to our business in contravention of any state or federal laws preventing tortious interference with a business.
Access to Your Digitized Materials Online
In certain circumstances, we may choose to make your Digitized Materials available to you by providing you with a link to your Digitized Materials, which may be hosted in a cloud environment online, in which case we might use a third-party provider to facilitate this Cloud Digital Delivery (including by way of example, Google or Amazon) (collectively, the foregoing service is understood as “Cloud Digital Delivery”).
In the event that we make your Digitized Materials available through Cloud Digital Delivery, you acknowledge and agree that KODAK Digitizing does not control the online hosting environment, its security, its authenticity, or its integrity. You further acknowledge and agree that KODAK Digitizing has no responsibility or control over the Cloud Digital Delivery service, and KODAK Digitizing shall bear no liability for anything that might happen to your Digitized Materials therein. You agree to hold harmless KODAK Digitizing for any actions related to your Digital Materials in any way, whatsoever, with respect to the Cloud Digital Delivery, including but not limited to, any loss, destruction, corruption to the Digitized Materials, as well as any unavailability, lack of access, or irretrievability that you might experience if your Digitized Materials are offered through Cloud Digital Delivery.
As part of our Services, we offer certain order options for a Buyer between various Digitized Materials (e.g., Digital Access, Thumb Drive, and Disc Set). While our website will allow you to designate your preferred Digitized Material medium, in the event KODAK Digitizing faces inventory shortages associated with present global supply chain challenges, KODAK Digitizing cannot guarantee that your designated Digitized Material preference will be fulfilled. You acknowledge these inventory and supply considerations and agree that KODAK Digitizing may choose an alternative medium of Digitized Materials delivery.
Our Disclaimer of Warranties
THE SERVICES, MATERIALS, AND DIGITIZED MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.
KODAK DIGITIZING, TOGETHER WITH ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AND REPRESENTATIVES, HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF TITLE, MERCHANTABILITY, AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. WE DISCLAIM ALL WARRANTIES WHETHER ARISING OUT OF LAW, STATUTE, COURSE OF DEALING, TRADE USAGE, OR ANY OTHER RELATIONSHIP. WE MAKE NO WARRANTIES OF ANY KIND REGARDING THE SERVICES, THE MATERIALS, THE DIGITIZED MATERIALS, AND/OR ANY OTHER SERVICES OR PRODUCTS THAT WE PROVIDE. WE MAKE NO WARRANTIES WITH REGARD TO THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, FUNCTIONALITY, TIMELINESS, SPEED, OR ACCESSIBILITY OF ANY SERVICES, MATERIALS, DIGITIZED MATERIALS, OR OTHER PRODUCTS AND SERVICES THAT WE PROVIDE. WE DO NOT WARRANT THAT THE SERVICES, MATERIALS, DIGITIZED MATERIALS, OR OTHER PRODUCTS AND SERVICES WILL BE COMPLETE, WITHOUT DEFECT, ACCURATE, INTACT, UNDAMAGED, ERROR-FREE, OR VIRUS-FREE. TO THE EXTENT ANY JURISDICTION DOES NOT PERMIT US TO DISCLAIM WARRANTIES IN THESE WAYS, WE DISCLAIM WARRANTIES TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
Limitation of Liability
TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE KODAK DIGITIZING, TOGETHER WITH ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AND REPRESENTATIVES, FROM ALL LIABILITY ASSOCIATED WITH YOUR USE OF THE SERVICES AND YOUR RECEIPT OF THE MATERIALS AND DIGITIZED MATERIALS.
You acknowledge that you are responsible for any actions you take in placing an Order with us. You recognize that placing an Order with us and sending us your Materials are taken solely at your own risk.
IN NO EVENT WILL KODAK DIGITIZING, OUR DIRECTORS, OUR OFFICERS, OUR EMPLOYEES, OUR CONTRACTORS, OUR AGENTS, OR OUR REPRESENTATIVES BE LIABLE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY OR UNDER ANY EQUITABLE THEORY ARISING OUT OF OR IN CONNECTION WITH YOUR ORDER, THE SERVICES, THE MATERIALS, THE DIGITIZED MATERIALS, AND ANY OTHER SERVICES OR PRODUCTS PROVIDED BY KODAK DIGITIZING, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, CLINICAL OUTCOMES, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THE SITE OR THE SERVICES MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
You will indemnify, defend, and hold harmless KODAK Digitizing, our licensors and affiliates, and our and their respective directors, officers, employees, contractors, agents, and representatives, from and against any and all claims, causes of action, demands, liabilities, losses, costs, or expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of, in connection with, caused by or resulting from:
- your placement of an Order, your submission of Materials, and your communications with KODAK Digitizing;
- your violation of any of the provisions of these Service Order Terms;
- any activity related to your accessing the Services, including, without limitation, negligent or wrongful conduct; or
- your violation of any third-party right, including, without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right.
For purposes of clarity, these indemnification obligations apply to you and your Order for our Services. We reserve the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
If any loss, damage, delay, or non-performance is a result of acts of God, or natural disaster or catastrophe; pandemic, virus, plague, disease, or quarantine; war, invasion, other hostilities (including acts of terrorism), rebellion, or any other materially disruptive military or political event; embargo or labor dispute; power failures or other disruptions to services and utilities on which KODAK Digitizing relies (including but not limited to, any outage in hosting services provided by a third-party host for KODAK Digitizing online services); or any other unforeseen and external occurrence for which KODAK Digitizing is not responsible and could not predict which is required for the performance of its obligations, then KODAK Digitizing will not be not be liable for any such loss, damage, delay, or non-performance of services to the full extent excused under applicable law.
Choice of law
This contract is to be governed at all times by the laws of the State of Tennessee applicable to agreements made and to be wholly performed within that state, without regard to its conflict of laws provisions or the conflict of laws provisions of any jurisdiction that would cause the application of any law other than those of the State of Tennessee.
Arbitration & choice of forum
Any dispute or claim relating in any way to your use of KODAK Digitizing's services, or your visit to the Site, will be resolved by binding arbitration rather than in court. You agree that the arbitration will occur before a single arbitrator. You also agree that both parties will be responsible for their own costs and attorney’s fees, unless the claim is frivolous, in which case the arbitrator shall award attorney’s fees.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent at KODAK Digitizing, Attn: ARBITRATION, 1110 Market Street, Suite 318, Chattanooga, Tennessee, 37402. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
You agree that, if possible under all relevant rules, the arbitration will occur in the State of Tennessee, in Chattanooga, TN, or as close to it as possible.
Disputes as Individuals; Class Action Waiver
You and KODAK Digitizing both agree that any dispute resolution proceedings, whether judicial or arbitrated, will be conducted only on an individual basis, and not in a class nor any other consolidated or representative action. YOU AND WE BOTH HEREBY EXPRESSLY WAIVE EACH OF OUR OWN RIGHT(S) TO BRING CLAIM(S) AGAINST THE OTHER AS A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION, WHETHER A CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR PRIVATE ATTORNEY-GENERAL ACTION(S), OR ANY SIMILAR PROCEEDING IN WHICH SOMEONE IS ACTING IN A REPRESENTATIVE CAPACITY OVER MULTIPLE PARTIES.
If any court or other body of competent jurisdiction declares any part of this Agreement to be unenforceable, then that part will be deemed severed, and the enforceability of the remaining parts will not be affected. The unenforceable part will simply not be considered to be part of this Agreement.