Vendor Terms and Conditions

Standard Vendor Terms and Conditions

These Standard Vendor Terms and Conditions (“Agreement”) apply to all vendors, including independent contractors (“Vendors”), providing services or delivering goods to the Whitney Museum of American Art (“Whitney”), unless a separate, duly executed written vendor service agreement explicitly covering the particular services or delivery is entered into between Vendor and the Whitney. By performing work or services for the Whitney, Vendors agree to comply with these terms.

No other terms or conditions included in any Vendor purchase order, invoice, or other document will apply or be binding on the Whitney unless expressly agreed to in writing and signed by an authorized representative of the Whitney.

1. Exclusive Terms and Conditions: The terms and conditions set forth in this Agreement are the exclusive terms and conditions for the performance of the specified services and/or work by Vendor for the benefit of the Whitney (the “Services”). No modifications, waivers or amendments may be made to any of them without the prior written approval of a duly authorized representative of the Whitney.

2. Fees and Payment: Vendor shall be paid the fee agreed in writing with the Whitney (“Fee”), upon submission of a monthly invoice. The Fee shall be payable within 30 days following receipt of a valid invoice by Whitney and shall be inclusive of any and all remuneration to which Vendor is entitled to under this Agreement.

3. Quality of Work; Compliance with Law: Vendor shall, at its own cost and expense, perform the Services in a professional and workmanlike manner. All Services shall be performed in strict conformity with the highest applicable industry standards and all applicable federal, state and local laws, rules and regulations. Vendor is responsible for obtaining and maintaining all permits, licenses, approvals, certificates and other documents required by Whitney or otherwise required by applicable laws and, upon request, shall furnish a copy to Whitney. Vendor shall comply with all pertinent Whitney policies and guidelines, including, without limitation, Whitney Values Statement and Applicable Policies, and instructions from authorized Whitney personnel.

4. Insurance: Vendor must maintain the following insurance and submit certificates of insurance to Whitney evidencing the same prior to commencing any Services:

Commercial General Liability: for bodily injury, property damage, personal injury and advertising injury: $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: as required by law; and
Umbrella Liability: $2 million per occurrence and $2 million in the aggregate.

Vendor shall provide a certificate of insurance naming Whitney Museum of American Art, its trustees, officers, and employees as additional insureds. Insurance must be primary and non-contributory to any insurance carried by Whitney. Deductibles are the responsibility of Vendor. Non-conforming insurance shall not relieve Vendor of the obligation to provide insurance as specified herein, and the existence of coverage shall in no way limit Vendor’s liabilities and responsibilities specified within this Agreement or by law, including, but not limited to, for any liability and responsibility beyond the insurance coverage. 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 canceled during such period.

5. Indemnification: 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 related to, in whole or in part, any act or omission by Vendor or its employees, trustees, directors, officers, contractors, or any other party acting on its behalf: (a) the Services, (b) breach of any term or provision of this Agreement; (c) 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; (d) violation of applicable laws, rules, or regulations; (e) actual or alleged infringement or other violation or misappropriation of any intellectual or other propriety right or privacy or publicity right of any third party; or (f) any other acts or omissions or willful misconduct by Vendor in connection with this Agreement. Whitney reserves the right to be represented in any such action by its own counsel.

6. 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.

7. Work for Hire: All work product created by Vendor in connection with the Services is a “work for hire” and the exclusive property of Whitney. If any part of the work product is deemed not to be a work for hire, Vendor hereby irrevocably transfers and assigns to Whitney all of its ownership and rights therein. Upon request, Vendor will promptly execute any additional documents the Whitney may reasonably require to evidence or perfect such ownership, assignment, or waiver.

8. 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, which prevents or delays the performance of any obligations under this Agreement, 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 change in law); pandemics or epidemics; lockout or strike or other labor dispute; substantial interruption in, or substantial delay or failure of, technical facilities or essential utilities; or any other act 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.

9. 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 shall be deemed included in the Fee for the Services, and Whitney shall have no liability to pay Vendor any amount in excess of the Fee specified herein.

10. Assignment: This Agreement will inure to the benefit of Whitney’s successors and assigns. Vendor may not assign this Agreement, nor subcontract any of the Services required under this Agreement, without the Whitney’s express prior written consent. Any attempted assignment or subcontracting without such consent will be void and ineffective. If the Whitney consents to any assignment or subcontracting, Vendor will remain primarily responsible for all Services performed by any assignee or subcontractor as if performed by Vendor.

11. Termination: The Whitney may terminate or suspend this Agreement at any time, in its sole discretion, upon written notice to Vendor. In the event of termination, Vendor will be compensated for the reasonable Services performed up to the date of termination. Termination of this Agreement shall not affect Vendor’s continuing obligations as provided under Sections 5, 6, 12, 13, 14 or 18.

12. 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 confidential information obtained by Vendor during performance of this Agreement, except as authorized in writing by Whitney. Upon completion or termination of this Agreement, Vendor shall return to Whitney all confidential information and all records or documents received from Whitney, including all copies.

13. Use of Name: Vendor agrees not to (a) divulge any information or issue any press releases or other publicity concerning the Services or this Agreement, except as required by law, (b) reference the Whitney, the Services or any relationship with the Whitney in any marketing or public relations materials or other publicly available information (including electronic media) or (c) use the name, logo, trademark, or other intellectual property of the Whitney, without, in each case, the prior written consent of the Whitney.

14. Validity: If any one or more provisions of this Agreement are held to be invalid, the remaining provisions of this Agreement will remain in full force and effect.

15. Notices: All notices required under this Agreement shall be in writing and shall be delivered by overnight courier or by United States mail to the address designated on the face of this Agreement.

16. Independence: Vendor agrees and acknowledges that in performing the Services pursuant to this Agreement, Vendor shall be acting as an independent contractor with respect to Whitney, and not as an employee, agent, partner or joint venturer of Whitney. Vendor, in its capacity as such, shall be free to accept other assignments and undertake other activities on his own account or for the accounts of third parties, provided such assignments or activities shall not be competitive (directly or indirectly) with or interfere with (directly or indirectly) the business of Whitney. Vendor agrees and understands that it shall not be authorized to, nor shall it, enter into any commitments, agreements or undertakings or assume any responsibilities in the name or on behalf of Whitney. Vendor will bear sole responsibility for payment on its own behalf of any federal, state or local income or employment tax or withholding, unemployment insurance, workers’ compensation insurance, liability insurance, health insurance, retirement or other welfare or pension benefits, and/or other payments and expenses. Vendor agrees to indemnify and hold the Whitney harmless in respect of all such payments claimed or assessed by any taxing authority, including reasonable attorneys’ fees. Vendor understands and agrees that neither Vendor nor any of its staff or affiliates is eligible for, and it and they hereby waive any claim to, wages, health coverage or any other benefits provided to employees of the Whitney.

17. Work Authorization: If Vendor (including any agents or employees) will be performing services in the United States under this Agreement and is/are not a United States citizen or permanent resident, Vendor represents and warrants that Vendor and any such individuals have obtained or will obtain or have obtained appropriate work authorization (where applicable).

18. Governing Law; Jurisdiction; Venue: This Agreement will be governed by and construed according to the laws of the State of New York without regard to principles of conflicts of law or choice of law. Any and all actions or proceedings relating to the subject matter of this Agreement will be maintained by the courts of New York or the federal district court sitting in New York City, which courts will have exclusive jurisdiction for such purposes. Vendor and Whitney waive the right to a trial by jury in any action or proceeding relating to the Agreement.