Vendor Terms and Conditions
Whitney Museum of American Art (“Museum” or “Whitney”) has issued the following terms and conditions for Vendors soliciting work at the Museum (including independent contractors), and while working at or delivering to the Whitney. All Vendors working for the Whitney must comply with these terms. Performance of work or services constitutes acceptance of all the terms and conditions herein (collectively, the “Agreement”).
1. 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 Museum (the “Services”). Performance by Vendor under the Agreement must be in accordance with all of the stated terms and conditions in this Agreement, and no change or alteration may be made to any of them without the prior written approval of a duly authorized representative of Whitney.
2. Fees and Payment: The Vendor shall be paid a fee in accordance with the amount agreed in writing with the Whitney representative (“Fee”), upon submission of a monthly invoice which shall be payable 30 days following receipt by Whitney. It is understood and agreed that such Fee is inclusive of any and all remuneration to which Vendor is entitled hereunder.
3. Quality of Work; Compliance with Law: Vendor shall, at its own cost and expense, perform the Services covered by this Agreement in a first class and workmanlike manner by qualified and efficient workers who shall not cause labor conflicts with any workers employed by Whitney or others working at Whitney’s facilities. The Services shall be performed in strict conformity with the strictest quality standards mandated and/or recommended by all generally recognized organizations establishing quality standards for work of the type to be performed hereunder. Vendor will, at its sole cost and expense, conduct all of the transactions covered by this Agreement in accordance with all applicable federal, state and local laws, rules and regulations; will obtain and furnish to Whitney any and all permits, licenses, approvals, certificates and other documents required by Whitney or otherwise required by applicable law; and will comply with any and all standards, statues, rules, ordinances, laws, regulations, codes in effect or to be enacted by the federal, state or local authorities in all respects with regard to this Agreement. In addition, Vendor shall comply with all pertinent rules and regulations of Whitney with the directions and instructions given by Whitney's authorized personnel.
4. COVID-19: Vendor should not arrive onsite if Vendor feels sick, or has a cough, sore throat, shortness of breath, fever, chills, loss of smell, muscle pain, or if within the last 10 days has tested positive for COVID-19. Vendor agrees to comply with the Museum’s health and safety requirements, as may be in effect from time to time, including masking, hygiene, sanitation, and social distancing protocols. Vendor is also responsible for complying with all Federal (CDC, OSHA), New York State, and New York City COVID-19-related regulations or guidelines.
5. Insurance: Vendor will maintain the following insurance and submit certificates of insurance to Whitney evidencing same prior to commencing any Services: (a) Commercial General Liability on an occurrence basis, for bodily injury, property damage, personal injury and advertising injury with limits of $1 million for each occurrence; Property Insurance on Vendor’s property, including a waiver of the insurer’s right of subrogation in favor of Whitney; Automobile Liability in the amount of $1 million combined single limit per accident for bodily injury and property damage; Workers’ Compensation as required by law, including Employer’s Liability coverage with sufficient limits to meet Umbrella Liability underlying insurance requirements; Disability Benefits Insurance in accordance with statutory limit; Umbrella Liability in the amount of $2 million each occurrence, $2 million in the aggregate. Vendor shall provide certificate of insurance naming Whitney Museum of American Art, its trustees, officers, and employees as an additional insured. Form of Certificate of Insurance can be found here. All such insurance shall be primary to any insurance carried by Whitney. Any and all deductibles or other forms of retention 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 Vendor fulfills any of the insurance requirements set forth herein by the use of a claims made policy, Vendor shall keep that policy in effect for at least one year after use of Museum facilities. If the claims made policy is cancelled during that one year period, Vendor shall purchase tail coverage for the remainder thereof.
6. Indemnification: To the maximum extent permitted by law, and except where caused by the Whitney’s gross negligence or intentional misconduct, Vendor agrees to indemnify, defend and hold harmless the Whitney its directors, officers, trustees, members, volunteers, officials, agents, employees, attorneys, affiliates, representatives, successors and assigns from and against any and all liabilities, obligations, damages, claims, actions, proceedings, losses, costs and expenses (including reasonable attorneys’ fees and costs) (the “Losses”) arising in whole or in part out of, connected with or resulting from the Services to be performed by Vendor or otherwise under this Agreement including, without limitation, any actual or alleged negligent or wrongful act, error or omission by Vendor or any of Vendor’s associates or any breach by Vendor or any of Vendor’s associates of or other failure to perform the obligations under this Agreement.
7. Work for Hire: The Services are provided on a “work for hire” basis, such that the Whitney will be the sole and exclusive owner of all work product resulting from the Services. Such work product will be deemed a work made for hire, and the copyright and all other rights in it will be owned entirely by the Whitney. If any part of the work product is deemed to be owned by the Vendor, the Vendor hereby irrevocably transfers and assigns to the Whitney all of its ownership and rights therein. Upon request, the Vendor will promptly execute any additional documents the Whitney may reasonably require to evidence or perfect such ownership, assignment, or waiver.
8. Cancellation; 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 (defined below). A “Force Majeure Event” shall mean an act or declaration of war; terrorist act or threat; riot or civil commotion; an act or regulation of public authority (including any public health or safety warning, advisory, or recommendations thereunder); epidemic, pandemic, local disease outbreak, or any other public health emergency; declaration of a national or regional state of emergency; quarantine or embargo; fire; earthquake; natural disaster; lockout or strike or other labor dispute; substantial interruption in, or substantial delay or failure of, technical facilities or essential utilities; an act of God; or other occurrence outside the reasonable control of a party. 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 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 tax exempt. 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. 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. Whitney may serve any summons or process in any such proceeding on Vendor in the manner for giving notices described below. Vendor and Whitney waive the right to a trial by jury in any action or proceeding relating to the Agreement.
11. Assignment: This Agreement will inure to the benefit of Whitney’s successors and assigns. None of the Services to be performed under this Agreement may be assigned by Vendor, nor may Vendor subcontract for any Services required by this Agreement 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 performed, by such assignee or subcontractor, as if performed by Vendor.
12. Termination: The Whitney may terminate or suspend this Agreement at any time, in its sole discretion, upon written notice to Vendor. In the event the Museum terminates under this section, Vendor will be compensated for the Services performed up to the date of termination. Termination of this Agreement shall not affect Vendor’s continuing obligations as provided under Section 6 or 13.
13. Confidentiality: Vendor agrees to hold in confidence and not disclose, distribute, sell, copy, share or otherwise use any information obtained by Vendor during performance of this Agreement, except as may be authorized by Whitney in writing. Upon performance of this Agreement, Vendor shall return to Whitney all confidential information and all records or documents received from Whitney, including any copies of such records or documents.
14. 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 to anyone except as required by law, (b) reference the Whitney, the Services or any other relationship with the Whitney in any marketing or public relations materials or other publicly available information (including, without limitation, on electronic media) or (c) use the name, logo, trademark, or other intellectual property of the Whitney, without, in any case, the prior written consent of the Whitney.
15. Validity: If any one or more provisions of this Agreement are held to be invalid for any reason, the remaining provisions of this Agreement will remain in full force and effect.
16. Survival: The provisions of Paragraphs 6, 13, 14, and 15 shall continue survive the performance by Vendor of this Agreement.
17. Notices: All notices to be given hereunder shall be in writing and shall be delivered by facsimile, overnight carrier or by United States mails to the address designated on the face of this Agreement.
18. Independence: The Vendor agrees and acknowledges that in performing the Services pursuant to this Agreement, the Vendor shall be acting as an independent Vendor with respect to the Whitney, and not as an employee, agent, partner or joint venturer of the Whitney. The 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 the Whitney. The 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 the Whitney. The 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. The 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. The Vendor understands and agrees that neither the Vendor nor any of its staff or affiliates is eligible for, and it and they hereby waive any claim to, wages, compensation incentives, profit-sharing participation, health coverage or any other benefits provided to employees of the Whitney. The Vendor and the Whitney hereby acknowledge and agree that the Agreement does not constitute a hiring or employment agreement by either party. Neither the Vendor nor any of its staff or affiliates will be eligible to participate in any Whitney employee benefit plans or programs.
19. 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, the Vendor represents and warrants that the Vendor and any such individuals will obtain or have obtained appropriate work authorization (where applicable). If the Vendor and/or the Vendor's agents or employees will be traveling internationally under this Agreement, the Vendor acknowledges that the Vendor is responsible for securing any necessary paperwork and authorizations for such travel (where applicable).
20. Entire Agreement: This Agreement constitutes the entire agreement between Vendor and Whitney regarding the subject matter of this Agreement and supersedes any writing signed by Whitney's authorized representative, all other representations, agreements, proposals, promises, trade customs and practices and understandings, oral or otherwise, between Vendor and Whitney with respect to the matters contained herein, as well as any prior or subsequent price quotation, invoice, confirmation or other document furnished by Vendor. In the event of any inconsistency among or between the provisions of this Agreement, that provision which requires of the Vendor the greater duty, the greater standard of care or the greater quantity shall govern or, if said inconsistency relates to restrictive clauses, the more restrictive of these clauses, as applied to the Vendor, shall govern.