District Photo, Inc. Purchase Order Terms and Conditions

1. AGREEMENT

1.1. Parties. The terms and conditions set forth below, together with those appearing on the face of this purchase order and any attachments hereto (collectively, “Order”), constitute an agreement between DISTRICT PHOTO, INC. or any other DISTRICT PHOTO, INC entity identified on the face of this purchase order, including any and all applicable subsidiaries (“DISTRICT PHOTO”), and the party identified on the face of this purchase order ("Seller").  The Order is not a firm offer, and may be revoked at any time prior to Seller’s acceptance.

1.2. Precedence. In the event of a conflict between this Order and any other written agreement between the parties and specifically covering the same goods or services, the terms and conditions of such agreement shall prevail to the extent of such conflict. Notwithstanding the above, this Order shall prevail over any differing or additional terms and conditions proposed by Seller, including, without limitation, those contained in any invoice.

1.3. No Modification. No modification of this Order shall be binding unless agreed to in writing by an authorized representative of each party.

2. PRICES AND PAYMENT

2.1. Price. Seller shall sell to DISTRICT PHOTO the goods ("Goods") or services ("Services") shown on the face of this Order at the prices specified. Any forecasts provided by DISTRICT PHOTO are provided as an accommodation to Seller and shall not constitute a commitment of any type by DISTRICT PHOTO. Except as otherwise provided in this Order, prices are inclusive of applicable freight charges and duties.

2.2. Taxes. DISTRICT PHOTO shall be responsible for any applicable sales taxes, provided Seller has submitted appropriate information or documentation to allow DISTRICT PHOTO to recover such taxes as appropriate. DISTRICT PHOTO shall include such taxes with the payment or provide Seller with the appropriate information or documentation to support exemption from such taxes. DISTRICT PHOTO shall have no other or further liability to Seller with respect to any tax, duty, levy or like imposition for which Seller may be liable as a result of the supply of the Goods or Services.

2.3. Payment. Unless indicated otherwise on the face of this purchase order, payment shall be due sixty (60) days after the latter of DISTRICT PHOTO’s receipt of either an appropriate invoice from Seller or the relevant Goods or Services. DISTRICT PHOTO may deduct from such payment any monies owed by Seller to DISTRICT PHOTO. Seller agrees to extend to DISTRICT PHOTO any and all payment term discounts that Seller has extended to other customers within a period consisting of the immediate past 24 months ended by the date of this Purchase Order.

2.4. Not Acceptance. Payment by DISTRICT PHOTO shall neither constitute acceptance of the Goods or Services, nor impair DISTRICT PHOTO’s right to inspect such Goods or Services or invoke any available remedies.

3. SHIPMENT AND DELIVERY

3.1. Shipment Terms. Seller shall ship Goods in the method identified by DISTRICT PHOTO to permit Seller to meet the delivery date(s) identified by DISTRICT PHOTO on the face of this purchase order (“Delivery Date”). If Seller ships by any other method, Seller shall pay any resulting increase in the cost of freight. Except as specified below, shipments of Goods shall be DDP (as that term is defined in the Incoterms 2010 handbook) DISTRICT PHOTO’s destination, and title and risk of loss or damage shall pass from Seller to DISTRICT PHOTO upon Seller’s delivery of the Goods to the "Ship To" address identified by DISTRICT PHOTO on the face of this purchase order.

3.2. Costs. Except as otherwise provided in this Order, the Seller shall bear all shipping and transport expenses. Seller shall bear all expenses related to handling, packing, packaging, loading and delivery of Goods to the designated carrier, and loading of Goods onto carrier’s conveyance.

3.3. Packaging. Seller shall handle, label, pack and package the Goods so as to protect the Goods from loss or damage, in conformance with good commercial practice, DISTRICT PHOTO specifications, government regulations (including those applicable to chemicals and hazardous materials) and meet other applicable requirements. Without limiting the generality of the foregoing sentence, Seller shall use packaging materials, including pallets, that are free of pests and comply with all applicable regulations regarding Solid Wood Packing Materials; Seller shall use recycled or reusable packaging materials and minimize the number of different types of packaging materials whenever possible; and Seller shall comply with all applicable requirements regarding packaging recycling, re-use and return, and furnish to DISTRICT PHOTO, upon request, information or documentation of Seller’s compliance. Seller shall be responsible for any loss or damage due to its failure to handle, pack and package the Goods in a proper and lawful manner; DISTRICT PHOTO shall not be required to assert any claims for such loss or damage against the carrier involved. In each shipment, Seller shall include a packing list that contains the following: (a) this Order number; (b) the DISTRICT PHOTO part number; (c) the quantity shipped; and (d) the requested delivery date. The information on the packing list must agree with the information on Seller’s invoice.

3.4. Prospective Failure. Failure to meet the Delivery Date specified on the face of this Order shall constitute a breach of this Order. Seller shall give DISTRICT PHOTO notice of any prospective failure to ship Goods or provide Services in time to meet the Delivery Date. If only a portion of Goods is available for shipment to meet the Delivery Date, Seller shall ship the available Goods unless directed by DISTRICT PHOTO to reschedule shipment. If only a portion of the Services can be performed on the Delivery Date, Seller shall perform such Services unless directed by DISTRICT PHOTO to reschedule performance. Partial deliveries shall be deemed late shipments and be considered complete only when all Goods and Services have been shipped. Notwithstanding the above, upon Seller’s notice of any prospective failure to ship Goods or provide Services in time to meet the Delivery Date, DISTRICT PHOTO reserves the right to terminate the Order and any subsequent Orders without any charge or liability.

3.5. Late Shipment. If, due to Seller's failure to ship Goods in a timely manner, the identified method of transportation would not permit Seller to meet the Delivery Date, Seller shall ship the Goods by air transportation or other means acceptable to DISTRICT PHOTO, and shall pay for any resulting increase in the cost of freight.

3.6. Early Shipment. If DISTRICT PHOTO receives any shipment more than three working days prior to the Delivery Date without prior approval, DISTRICT PHOTO may either return the Goods or delay processing the corresponding invoice until the Delivery Date.

3.7. Non-Complying Goods. Seller shall be responsible for all risk and expenses, including transportation charges, associated with (a) the return of all Non-Complying Goods (as defined in section 6.1 below), over shipments, and early shipments returned by DISTRICT PHOTO to Seller; and (b) the shipment to DISTRICT PHOTO by Seller of all replacement and reworked Goods.

4. CHANGES

4.1. Change or Cancellation. DISTRICT PHOTO may, without any charge or liability, change or cancel any portion of this Order, provided DISTRICT PHOTO gives Seller notice (a) for customized Goods or Services (i.e., supplied exclusively in accordance with DISTRICT PHOTO’ specifications and cannot be reasonable sold to Seller’s other customers), at least thirty (30) calendar days prior to the Delivery Date; and (b) for all other Goods or Services at any time prior to shipment.

4.2. Specification Changes. DISTRICT PHOTO may, without any charge or liability, change, effective upon notice to Seller, DISTRICT PHOTO’s specifications at least fourteen (14) calendar days prior to shipment of corresponding Goods or receipt of corresponding Services. If any such change directly affects the prices or delivery schedule of Goods or Services, an equitable adjustment may be made, provided that Seller makes a written claim for an adjustment within 30 days of DISTRICT PHOTO’s notice and prior to shipment of the Goods or provision of the Services, and provided that such equitable adjustment is documented in writing signed by authorized representatives of both parties. If, after reasonable and good-faith efforts, the parties are unable to agree upon the amount of the adjustment, DISTRICT PHOTO may terminate, without any charge or liability, this Order as to all Goods and Services affected.

4.3. No Process or Design Changes. Seller shall not, without the prior written consent of DISTRICT PHOTO, make any process or design changes affecting the Goods.

5. QUALITY AND WARRANTY

5.1. Quality Control. Seller shall maintain an objective quality program that complies with all current U.S. standards for all Goods and Services in accordance with any general specification set forth in this Order or otherwise supplied by DISTRICT PHOTO. Seller shall furnish to DISTRICT PHOTO, upon request, a copy of Seller’s quality program and supporting test documentation.

5.2. Conformance Defects and Liens. Seller warrants that all Goods and Services shall (a) conform strictly to the specifications, descriptions, samples and other requirements described or referenced in this Order or provided by Seller; (b) be free from defects in materials and workmanship; and (c) be free of all liens, encumbrances and other claims against title.

5.3. Non-Infringement Warranty. Seller warrants that all Goods and Services do not and shall not infringe any patent, trademark, copyright, trade secret or other intellectual property right of a third party.

5.4. Duration of Warranties. Seller’s warranties of conformance, defects and liens shall be in effect for the longer of either (i) Seller's normal warranty period, or (ii) one year following the date of acceptance of the Goods or Services by DISTRICT PHOTO. All other warranties provided by Seller under this Order shall be in effect perpetually.

6. NONCOMPLYING GOODS AND SERVICES

6.1. DISTRICT PHOTO’S Options. In addition to the remedies specified in Section 9 below, if any Goods or Service is defective or otherwise not in conformity with the requirements of this Order ("Non-Complying Goods” and “Non-Complying Services”, respectively), DISTRICT PHOTO may either (a) return the Non-Complying Goods for replacement or reworking at Seller's expense; (b) replace the Non-Complying Goods itself and recover its reasonable expenses of replacement from Seller; (c) require Seller to re-perform the Services at Seller’s expense or (d) keep the Non-Complying Goods for use as intended.

6.2. Time for Compliance. If DISTRICT PHOTO returns the Non-Complying Goods, Seller shall return the replacement or reworked Non-Complying Goods no later than five working days after receipt of the Non-Complying Goods from DISTRICT PHOTO. If DISTRICT PHOTO requires Seller to re-perform the Non-Complying Services, Seller shall re-perform the Services within five working days after notice from DISTRICT PHOTO that Services are defective or not in conformity with the requirements of this Order. The cure period specified in Section 9.1 below shall apply only once to any breach of this section.

6.3. Failure to Provide Complying Goods. If Seller fails to return replacement or reworked Goods to DISTRICT PHOTO within five working days of receipt of Non-Complying Goods, DISTRICT PHOTO may reject the Non-Complying Goods, and Seller shall reimburse DISTRICT PHOTO all associated costs paid by DISTRICT PHOTO. If DISTRICT PHOTO rejects the Non-Complying Goods, DISTRICT PHOTO may procure, upon such terms and in such manner as DISTRICT PHOTO deems appropriate, replacement goods. Seller shall reimburse DISTRICT PHOTO upon demand for all additional costs incurred by DISTRICT PHOTO in purchasing any such replacement goods.

6.4. Failure to Re-Perform Services. If Seller fails to re-perform the Services within five working days after notice from DISTRICT PHOTO, DISTRICT PHOTO may procure, upon such terms and in such manner as DISTRICT PHOTO deems appropriate, replacement services. Seller shall reimburse DISTRICT PHOTO upon demand for all additional costs incurred by DISTRICT PHOTO in purchasing any such replacement services.

7. INDEMNIFICATION, INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION

7.1. Indemnification. Seller agrees to defend, indemnify and hold harmless DISTRICT PHOTO and its affiliates, subsidiaries, assigns, subcontractors and customers from and against all claims, losses, demands, fees, damages, liabilities, costs, expenses (including attorneys’ fees), obligations, causes of action, suits or injuries of any kind or nature arising from, in connection with or related in any way to any breach or alleged breach of any of the warranties made by Seller.

7.2. Insurance. Seller shall obtain and maintain general commercial liability insurance covering products and completed operations and consumer goods recall insurance, each with coverage amounts of at least $1,000,000 US per occurrence and $2,000,000 US in the aggregate.  Seller shall provide DISTRICT PHOTO with a certificate of insurance reflecting the required coverages for each policy year during which this PO is in effect naming “DISTRICT PHOTO and its parents, subsidiaries, and affiliates” as additional insured parties.  Seller’s failure to provide , and DISTRICT PHOTO’s failure to obtain, the required certificate of insurance shall not waive or otherwise alter the requirement for same under this PO.

7.3. Infringing Goods And Services. Without limiting the above remedy, if DISTRICT PHOTO’s use of any Goods or receipt of any Service is enjoined because of any actual or claimed infringement of patent, trademark, copyright, trade secret or other intellectual property right of a third party (collectively, "Infringing Product"), Seller shall at its expense use its best efforts to procure the right for DISTRICT PHOTO to continue using or receiving the Infringing Product. If Seller is unable to do so, Seller shall at its expense (a) replace the Infringing Product with non-infringing goods or service (as applicable) without loss of functionality; (b) modify the Infringing Product to be non-infringing; or (c) if unable to replace or modify the Infringing Product, refund in full all costs paid by DISTRICT PHOTO for the Infringing Product and reimburse DISTRICT PHOTO upon demand for all additional costs incurred by DISTRICT PHOTO in purchasing any replacement goods or services.

7.4. Removal of DISTRICT PHOTO’S Trademarks. Unless otherwise specified or approved by DISTRICT PHOTO, Seller shall remove DISTRICT PHOTO’S name and any of DISTRICT PHOTO'S trademarks, trade names, insignia, part numbers, symbols or decorative designs from all Goods rejected or returned by DISTRICT PHOTO or not sold or shipped to DISTRICT PHOTO.

7.5. Confidential Information. Except as required to supply Goods or Services pursuant to this Order or as otherwise instructed by DISTRICT PHOTO, Seller shall not use or disclose any confidential information of DISTRICT PHOTO. Confidential information includes, without limitation, all information designated by DISTRICT PHOTO as confidential; all information or data concerning DISTRICT PHOTO’s Goods (including the discovery, invention, research, improvement, development, manufacture or sale thereof) or general business operations (including costs, forecasts, profits, pricing methods and processes); information obtained through access to any DISTRICT PHOTO information technology systems (“IT/S”), including but not limited to, computers, networks and voice mail; and any other information that is of such a nature that a reasonable person would believe it to be confidential.

7.6. Limited IT/S Access. Seller’s access to DISTRICT PHOTO’ IT/S is limited to those specific IT/S, time periods and personnel authorized by DISTRICT PHOTO, and is subject to DISTRICT PHOTO information protection policies. Any other access is expressly prohibited. Seller warrants that it shall comply with these obligations and that access granted hereunder shall not impair the integrity and availability of DISTRICT PHOTO’s IT/S. DISTRICT PHOTO may audit Seller to verify compliance. Seller warrants that each employee, agent or subcontractor who performs work pursuant to this Order has been informed of the obligations contained herein and has agreed to be bound by them.

8. LEGAL COMPLIANCE

8.1. General Compliance. Seller shall comply with all applicable laws, rules, and regulations. Without limiting the generality of the foregoing sentence, Seller warrants the following:

8.1.1. Environmental Compliance. All Goods and their packaging shall comply with all applicable environmental, health and safety (EHS) laws, rules and regulations.

8.1.2. Chemical Substances. Each chemical substance contained in Goods is on the inventory of chemical substances compiled and published by the U.S. Environmental Protection Agency pursuant to the Toxic Substances Control Act; and all required Material Safety Data Sheets, Chemical Safety Data Sheet and other product-content information shall be provided to DISTRICT PHOTO prior to or with the shipment of the Goods and shall be complete and accurate. Seller shall provide product material chemical composition data upon request to verify compliance with applicable product chemical content restrictions.

8.1.3. Substance Classification. No Goods nor any component of any Goods contains any “Class I substance” or “Class II substance” as those terms are defined by U.S. law at 42 U.S.C. Section 7671, as now in existence or hereafter amended; or has been manufactured with a process that uses any Class I substance or Class II substance within the meaning of U.S. law at 42 U.S.C. Section 7671j (d) (2), as now in existence or hereafter amended.

8.1.4. Invoice Certification. As a condition precedent to payment thereof, Seller shall, upon request, certify each invoice as follows: “We certify that contract deliverables listed hereon were produced in compliance with all applicable requirements of Sections 6, 7, and 12 of the U.S. Fair Labor Standards Act, as amended, and of regulations and orders of the U.S. Department of Labor issued under Section 14 thereof. We further certify that any and all additional contract deliverables shall be produced in compliance with the same requirements.”  

8.1.5 C-TPAT. In connection with providing Goods and Services to DISTRICT PHOTO, Seller shall comply with Customs-Trade Partnership Against Terrorism (C-TPAT) or equivalent supply chain security measures. When requested by DISTRICT PHOTO, Seller shall demonstrate compliance by providing certification thereof to DISTRICT PHOTO.

8.2. Other Requirements. Seller shall furnish to DISTRICT PHOTO, upon request, information or documentation of Seller’s compliance with applicable laws, rules and regulations, as well as any other information or documentation required to enable DISTRICT PHOTO to comply with such laws, rules and regulations applicable to its use of any Goods or receipt of any Service.

9. BREACH

9.1. Breach by Seller. If Seller breaches any provision of this Order, DISTRICT PHOTO may terminate the whole or any part of this Order, unless Seller cures the breach within ten (10) working days after receipt of DISTRICT PHOTO notice of breach.

9.2  Definition of Breach. For purposes of section 9.1 above, the term "breach" shall, without limitation, include (a) any proceeding, whether voluntary or involuntary, in bankruptcy or insolvency by or against Seller; (b) the appointment, with or without Seller's consent, of a receiver or an assignee for the benefit of creditors; (c) Seller’s failure to provide DISTRICT PHOTO, upon request, with reasonable assurances of performance; or (d) any other failure by Seller to comply with this Order.

9.3 Termination. In the event that DISTRICT PHOTO terminates this Order in whole or in part as provided above, DISTRICT PHOTO may procure, upon such terms and in such manner as DISTRICT PHOTO deems appropriate, replacement goods or services, and Seller shall reimburse DISTRICT PHOTO upon demand for all additional costs incurred by DISTRICT PHOTO in purchasing such replacement goods or services.

9.4 Rights and Remedies. The rights and remedies granted to DISTRICT PHOTO pursuant to this Order are in addition to, and shall not limit or affect, any other rights or remedies available at law or in equity.

10. IMPORT/EXPORT REQUIREMENTS

10.1. General Compliance. Seller shall comply with all applicable import and export requirements, and shall furnish to DISTRICT PHOTO, upon request, information or documentation of Seller’s compliance, as well as any other information or documentation required to enable DISTRICT PHOTO to comply with such requirements applicable to its receipt of any Goods. Without limiting the generality of the foregoing sentence, Seller warrants the following:

10.1.1. Certification. Upon DISTRICT PHOTO’ request, Seller shall provide DISTRICT PHOTO with an appropriate certification stating the country of origin (including exact manufacturing facility location and name) for Goods, sufficient to satisfy the requirements of (a) the customs authorities of the country of receipt; and (b) any applicable export licensing regulations, including those of the United States.

10.1.2. Required Marking. All Goods shall be marked (or the container shall be marked if there is no room on the Goods themselves or unless exempted from marking) with the country of origin.

10.1.3. Commercial Invoice. Seller shall issue a commercial invoice containing, without limitation, the following information: invoice number, invoice date, name and address of the shipper, name and address of the seller (if different from the shipper), name and address of the consignee, name and address of the buyer (if different from the consignee), a detailed description of the Goods, DISTRICT PHOTO part-numbers, Manufacturing Lot number of Goods, order number, bag number, total number of bags, total bag weight, country of origin, quantities in the weight and measure of the country to which the Goods are shipped, unit price of each Good, total invoice value, currency of the invoice, invoice type, Incoterms 2010 term of sale. The invoice must be issued in the language required by the country to which the Goods are shipped.

10.2. Importer of Record. If any Goods are imported, Seller shall when possible allow DISTRICT PHOTO to be the importer of record, unless otherwise specified or approved by DISTRICT PHOTO. If DISTRICT PHOTO is not the importer of record and Seller obtains duty drawback rights to the Goods, Seller shall furnish to DISTRICT PHOTO, upon request, information and documentation required by the customs authorities of the country of receipt to prove importation and to transfer duty drawback rights to DISTRICT PHOTO.

11. MISCELLANEOUS

11.1. No Assignment. Seller shall not assign its rights or obligations without DISTRICT PHOTO’s prior written consent. Any attempted delegation or assignment shall be void.

11.2. Waiver. The waiver of any term or condition of this Order must be in writing. No such waiver shall be construed as a waiver of any other term or condition, nor as a waiver of any subsequent breach of the same term or condition.

11.3. Choice of Law. This order shall be construed and governed according to the laws of the State of Maryland. Seller hereby submits to the jurisdiction of the courts of the State of Maryland and any federal district court within the State of Maryland.

11.4. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS EXPRESSLY PROVIDED OTHERWISE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. NOTWITHSTANDING THE FOREGOING, SELLER SHALL BE RESPONSIBLE FOR ANY DAMAGES OF ANY KIND UNDER SECTIONS 7 AND 8 ABOVE

11.5. Non-Restrictive Relationship. Nothing in this Order shall be construed to preclude DISTRICT PHOTO from producing, distributing or marketing the same or similar goods or services as the Goods or Services provided under this Order or purchasing such same or similar goods or services from other third parties.

11.6. Severability. If a body of competent jurisdiction holds any term or provision of this Order to be invalid or unenforceable, such term or provision will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability, and the other provisions of this Order will remain in full force and effect.