Purchase Order

Purchase Order Terms and Conditions

These Purchase Order Terms and Conditions (“Terms”) apply to transactions between Vendor and Whitney Museum of American Art (“Whitney”) that are not governed by a separate, duly executed written agreement. If such an agreement exists, its terms will govern. In the absence of such an agreement, these Terms govern the purchase (the “Purchase”) of goods and/or services specified in the accompanying Purchase Order (“Purchase Order”).

1. Acceptance and Scope

Vendor accepts and agrees to be bound by these Terms upon the earliest of: (a) Vendor’s written acceptance of these Terms; (b) Vendor’s delivery or performance of any part of the goods and/or services; or (c) Vendor's acceptance of payment for the goods and/or services.

Any additional or conflicting terms, whether contained in any acknowledgment of the Purchase Order, available on Vendor’s website or otherwise proposed by Vendor, are expressly rejected and will not be binding on Whitney, unless agreed in writing by both parties. These Terms may be modified only by a written document signed by duly authorized representatives of Whitney and Vendor.

2. Changes to Purchase Order

Whitney reserves the right at any time, at its sole discretion, to change all or any part of the Purchase Order by written notice. If such changes affect price or delivery, Vendor must notify Whitney in writing within seven (7) days of receipt of such notice, and an equitable adjustment shall be made in the contract price or schedule, as applicable; otherwise, Vendor waives any claim for adjustment. No price increase, delivery extension or change in quantity is binding unless agreed to in writing by Whitney. Failure to enforce any provision is not a waiver of future enforcement.

3. Acceptance

Delivery and/or performance will be deemed complete only when made pursuant to a valid Purchase Order and received by Whitney. All goods and/or services are subject to Whitney’s right of inspection and approval. Whitney shall not be deemed to have accepted the goods and/or services until it has had a reasonable time to inspect them following delivery and/or performance or, in the case of a latent defect, until a reasonable time after the latent defect has become apparent. Payment for goods and/or services prior to inspection will not constitute acceptance by Whitney.

Whitney may, at its option, reject all or any portion of the goods and/or services that: (a) are defective or not marketable or merchantable; (b) are not fit for the purpose for which purchased; (c) do not conform to (i) the sample, if any, from which such goods are ordered, or (ii) the specifications contained in the Purchase Order; (d) if no sample was utilized, do not conform to goods, materials, service or work previously supplied to and accepted by Whitney; (e) are in excess of the quantity specified in this Purchase Order; or (f) otherwise fail to comply, in Whitney’s sole discretion, with (i) Whitney's shipping or billing instructions, or (ii) any of the other terms or provisions of the Purchase Order, these Terms or Whitney’s requirements. Vendor may cure any non-conforming tender only with the prior written consent of Whitney. Acceptance of all or any part of the goods and/or services will not be deemed to be a waiver by Whitney of its right to (a) cancel, reject or return all or any portion of the goods and/or services, or (b) make a claim for damages, for reasons including defect, breach of warranty, late delivery and/or performance, or breach or non-compliance with any terms of these Terms or the Purchase Order.

4. Timely Performance

Time is of the essence. Vendor’s failure to deliver goods or complete the services within the timeframe specified in the Purchase Order constitutes a material breach of these Terms.

5. Title and Risk of Loss

Vendor will bear all risk of loss or damage to goods until delivered to Whitney as specified. Title and risk of loss pass to Whitney upon delivery. Vendor warrants that all goods are free and clear of all liens, claims, security interests, pledges, charges, mortgages, deeds of trust, options, or other encumbrances of any kind.

6. Cancellation and Termination

Whitney reserves the right at any time, at its sole discretion, to cancel or terminate the Purchase Order by written notice to Vendor. In case of cancellation, Vendor shall immediately stop all work and minimize costs. Whitney also reserves the right to cancel or terminate may immediately in case Vendor becomes insolvent or a petition in bankruptcy is filed by or against Vendor. This right of cancellation is in addition to and not in place of any other rights or remedies that Whitney may have in law or equity.

7. Packing, Shipping and Delivery

Vendor shall pack and ship all goods in accordance with Whitney’s instructions and industry best practices to prevent damage and secure the lowest transportation rates. Costs for packing, crating and shipping are included in the price unless otherwise specifically stated. Unless otherwise stated, all shipments shall be FOB destination to the “Ship to” address on the Purchase Order. Whitney may reject or return, at Vendor’s expense, any advance, late or excess shipments.

8. Prices and Invoicing

Prices stated in this Purchase Order are firm and include all costs and charges. No additional charges (including, without limitation, taxes, shipping, packing, or insurance) shall be payable by Whitney unless specifically agreed in writing. Vendor must submit invoices in accordance with Whitney’s instructions.

9. Payment

Payment terms are as specified in this Purchase Order. Payment does not constitute acceptance of goods or services. Whitney may adjust payments for shortages, defects, or non-performance.

10. Taxes

Whitney is a tax-exempt entity. Vendor shall not invoice, and Whitney shall not pay, any federal, state or local taxes. Any taxes, tolls, import charges, and other governmental assessments are deemed included in the price, and Whitney shall have no liability to pay Vendor any amount in excess of the price specified in the Purchase Order.

11. Warranties and Indemnification

In addition to and without limiting any of Vendor’s other warranties, express or implied, Vendor expressly warrants that all goods and services: (a) are new and first-class quality; (b) are free from defects in design, materials, and workmanship; (c) conform to all specifications, samples and descriptions; (d) are fit for their intended purpose; (e) are produced in compliance with all applicable laws and regulations; and (f) do not infringe any third-party rights, including, without limitation, patent, copyright, trade secret or other proprietary right. All warranties are in addition to, and not in lieu of, any other warranties, express or implied, and survive inspection, acceptance, and payment.

To the fullest extent permitted by law, and except where caused by Whitney’s gross negligence or intentional misconduct, Vendor agrees to indemnify, defend, and hold harmless Whitney and its trustees, officers, employees, members, volunteers, agents and representatives, from and against any and all liabilities, damages, claims, actions, proceedings, losses, costs and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to, in whole or in part, any of the following by Vendor or its employees, trustees, directors, officers, contractors, or any other party acting on its behalf: (a) breach of any term or provision of the Purchase Order or these Terms; (b) injury to or death of persons or damage to property caused by or arising out of or in connection with the goods and/or services provided by Vendor hereunder; (c) violation of applicable laws, rules, or regulations; (d) actual or alleged infringement or other violation or misappropriation of any intellectual or other proprietary right or privacy or publicity right of any third party; or (e) any other acts, omissions or willful misconduct by Vendor in connection with the Purchase Order. Whitney reserves the right to be represented in any such action by its own counsel.

12. Limitation of Liability

Whitney shall not be liable to Vendor, its employees, representatives, agents, suppliers, or subcontractors for any anticipated profits or incidental or consequential damages.

13. Compliance with Law and Whitney Policies

Vendor shall comply, at its sole cost and expense, with all applicable federal, state and local laws, rules and regulations, including obtaining and maintaining any and all permits, licenses, approvals, inspections, certificates and other documents required in connection with the performance of Vendor’s obligations hereunder or as otherwise required by applicable law. Vendor agrees to comply with all pertinent Whitney policies and guidelines, including, without limitation, Whitney Values Statement and Applicable Policies and instructions from authorized Whitney personnel.

14. Insurance: Vendor must maintain the following insurance and submit certificates of insurance to Whitney evidencing the same prior to commencing any services or work:

Commercial General Liability: $1 million per occurrence for bodily injury, property damage, personal injury and advertising injury;
Products Liability, Completed Operations, Contractual Liability and Explosion, Collapse and Underground Hazards Coverage: $1 million per occurrence;
Property Insurance on Vendor’s property, including a waiver of the insurer’s right of subrogation in favor of Whitney;
Automobile Liability: $1 million combined single limit per accident for bodily injury and property damage;
Workers’ Compensation as required by law, including Employer’s Liability coverage;
Disability Benefits Insurance in accordance with statutory limits; and
Umbrella Liability: $2 million per occurrence and $2 million in the aggregate.

Certificates must name Whitney Museum of American Art, its trustees, officers, and employees as an additional insureds. The Form of Certificate of Insurance can be found here. Insurance must be primary and non-contributory. Deductibles are Vendor’s responsibility. Non-conforming insurance shall not relieve Vendor of its obligations. If using a claims-made policy, Vendor must maintain coverage for at least one year after use of Whitney facilities or purchase tail coverage if the policy is canceled during such period.

15. Title and Property

All drawings, specifications, materials, and tools furnished or paid for by Whitney are and remain Whitney’s property, to be used solely for fulfilling this Purchase Order and returned promptly upon request or completion. Vendor assumes all liability for loss or damage, with the exception of normal wear and tear, to Whitney’s property.

16. Force Majeure

Neither party will be held liable for failure to fulfill its obligations hereunder if such failure is due to a Force Majeure Event. A “Force Majeure Event” shall mean an event or circumstance beyond the reasonable control of the affected party that prevents or delays the performance of any obligations under the Purchase Order, including, but not limited to natural disasters (such as earthquakes, floods, hurricanes), acts of war, terrorism, riots or civil unrest, government actions (such as embargoes or changes in law), pandemics or epidemics, lockouts or strikes or other labor disputes; substantial interruption in, or substantial delay or failure of, technical facilities or essential utilities; or other acts of God. If a Force Majeure Event impacts either party’s ability to perform, both parties will work in good faith to resume performance at a later date, if possible. If performance cannot be resumed and completed due to the impact of a Force Majeure Event, the Whitney will be refunded any amounts previously paid, less any documented and reasonable third-party expenses incurred prior to the occurrence of the Force Majeure Event. In no event will the Whitney be liable for any additional expenses incurred due to the occurrence of a Force Majeure Event.

17. Assignment

This Purchase Order will inure to the benefit of Whitney’s successors and assigns. Vendor may not assign or subcontract any part of the services or work to be performed under this Purchase Order, without Whitney's express prior written consent. Any such attempted assignment or subcontracting without Whitney's prior written consent will be void and ineffective for all purposes. In the event Whitney consents to such assignment or subcontracting, Vendor will remain primarily responsible for any and all services or work performed, or goods delivered, by such assignee or subcontractor, as if performed or delivered by Vendor.

18. Confidentiality

Vendor on behalf of itself and its directors, officers, employees, agents and subcontractors agrees to hold in confidence and not disclose, sell, copy, share or otherwise use any information obtained by Vendor during performance of this Purchase Order, except as authorized in writing by Whitney. Upon completion or termination of this Purchase Order, Vendor shall return to Whitney all confidential information and all records or documents received from Whitney, including any copies.

19. Use of Name

Vendor shall not (a) reference Whitney, the services, the Purchase Order or any relationship with Whitney in any marketing or public relations materials or other publicly available information (including electronic media) or (b) use Whitney’s name, logo, trademark, or other intellectual property without the prior written consent of Whitney.

20. Severability

If any one or more provisions of this Purchase Order are held to be invalid for any reason, the remaining provisions of this Purchase Order will remain in full force and effect.

21. Notices

All notices to be given hereunder shall be in writing and shall be delivered by facsimile, overnight courier or by United States mail to the address designated on the face of this Purchase Order.

22. Governing Law; Jurisdiction; Jury Trial Waiver

The Purchase Order and all matters arising out of or relating to the Purchase Order will be governed by and construed according to the laws of the State of New York without regard to principles of conflict of law. The courts of the State of New York in New York County and the United States District Court for the Southern District of New York will have exclusive jurisdiction over the parties with respect to any dispute, controversy, or claim between them arising out of or relating to this Purchase Order. Vendor and Whitney waive the right to a trial by jury in any action or proceeding relating to the Purchase Order.