Revised August 17, 2018
Wildlife Conservation Society (“WCS”) agrees to purchase from the vendor identified in the Purchase Order (“Vendor”) the goods and services described in the Purchase Order and in any attachments thereto.
A. The following terms and conditions apply to all Vendors providing goods to WCS:
- Acceptance. This order constitutes an acceptance by WCS of Vendor’s offer upon the terms and conditions stated herein and in the body of the Purchase Order and constitutes a binding agreement (“Agreement”) on both parties. In the event that the terms of any attachments to the Purchase Order conflict with the terms herein, the parties agree that the terms herein shall supplement and supersede the terms of any attachment.
- Delivery. Time is of the essence of this Agreement. Vendor agrees to make delivery on or before the delivery date specified herein. Vendor will promptly notify WCS of any anticipated or actual delay. Vendor shall take all reasonable steps to avoid and end delays within Vendor’s control at no cost to WCS. Any unreasonable delay will be considered a material breach of this Agreement. WCS reserves the right to cancel the order and reject the goods upon default by Vendor in time of delivery, or in WCS’s sole discretion, accept a revised delivery schedule.
- Inspection and Receipt of Goods. WCS will have the right to inspect the goods in any reasonable manner at the place of delivery as specified herein within ten days after receipt. The expenses of inspection will be borne by WCS, but they may be recovered from Vendor if the goods do not conform or are rejected due to defect in material or workmanship, damage due to unsatisfactory packaging or other breach of warranty. WCS will not be deemed to have accepted the goods within such period before inspection. Payment shall not be due within
such period before inspection, nor will payment made before it is due constitute final payment nor waive any rights of WCS.
- Payment, Taxes and Other Charges. Absent contrary terms agreed upon in writing between WCS and Vendor (including, without limitation, WCS’s expedited payment upon Vendor’s price discount), payment will be due forty-five (45) days from the actual date of delivery, the scheduled date of delivery hereunder, or the date of receipt of a proper invoice, whichever is later. Vendor shall not charge sales tax on goods delivered to any state where WCS is exempt from sales tax (presently California, Connecticut, District of Columbia, New Jersey and New York, and including any changes in the future). WCS is not responsible for any taxes, charges or other costs not stated in the Purchase Order.
- Relationship. Vendor is an independent contractor for all purposes. Neither party will be deemed to be the legal representative of the other. Vendor agrees to assume complete responsibility for its own employees with regard to federal, state or local employers’ liability, worker’s compensation, Social Security, unemployment insurance and Occupational Safety and Health Administration requirements, and agrees to comply with all other
applicable federal, state or local laws, ordinances, regulations and licensing obligations.
- Intellectual Property. With respect to any materials subject to U.S. copyright protection, including, without limitation, designs, drawings, art work, specifications, software and other intellectual property or proprietary information (collectively, the “Materials”):
a) All WCS Materials utilized in the performance of the Agreement are the sole property of WCS. This Agreement grants Vendor no express or implied rights or licenses with respect to such property, except to the extent of its use in filling WCS's Purchase Order.
b) If the goods delivered by Vendor include the delivery to WCS of any of Vendor’s Materials, Vendor agrees that WCS shall have the right to use, and allow others to use, Vendor’s Materials in connection with WCS’s use of the goods as the goods are intended to be used.
- Liability. IN NO EVENT SHALL WCS BE LIABLE TO VENDOR FOR ANY DAMAGES ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOST SAVINGS), EVEN IF A PARTY IS INFORMED OF THEIR POSSIBILITY.
- Indemnification. To the fullest extent permitted by law, and notwithstanding any limitation of liability contained in any attachment to the Purchase Order, Vendor shall defend, indemnify and hold harmless WCS, its trustees, officers, employees, faculty, guests, agents, affiliates, successors and assigns (“Indemnitees”), from and against, and/or reimburse Indemnitees for, any and all claims, demands, liabilities, losses, damages, liens, encumbrances, penalties, fines, suits, proceedings, judgments, costs and fees, including attorneys’ fees, of whatsoever kind or nature (“claim(s)”), including claims for damages because of bodily injury, illness, disease, or death, damage to, loss of use, or destruction of tangible property, actually or allegedly arising out of or occurring in connection with the negligent acts or omissions or intentional misconduct of the Vendor or any of its subcontractors, sub-subcontractors, suppliers, or any of their agents, employees, officers, directors or partners, (collectively, “Vendor’s Agents”) in connection with the purchases identified in the Purchase Order or breach of the Agreement by Vendor or Vendor’s Agents, excluding only liability caused by the Indemnitees’ sole and exclusive negligence. Vendor’s agreement set forth in this paragraph shall not be deemed excess coverage to any insurance or self-insurance Indemnitees may have covering a claim. If any portion of the purchase identified in the Purchase Order is delivered to or is performed at WCS’s zoos or aquarium in New York City, New York, the term “Indemnitees” as used above shall also include the City of New York (the “City”).
- Termination. WCS retains the right to terminate this Agreement for default, in whole or in part, by written notice to Vendor if Vendor (a) fails to deliver the goods within a reasonable time and in a reasonable manner; (b) becomes insolvent or makes assignment for the benefit of creditors, files or is forced to file bankruptcy or enters reorganization proceedings; or (c) provides unsatisfactory goods. In such an event, WCS reserves the right to take all reasonably necessary actions to cover its interest and obtain commercially equivalent goods.
- Warranty and Performance. Vendor warrants that any goods sold under this Agreement will be in conformity with WCS’s specifications, are merchantable, free from defects in design, materials and workmanship, and suitable for their ordinary and intended purposes and for WCS’s particular purposes. Vendor agrees that these warranties shall survive acceptance of the goods by WCS and resale to third parties, and shall run to Vendor and its assignees or successors-in-interest. These warranties are in addition to all applicable warranties mandated by law.
- Insurance. Vendor agrees to obtain and maintain commercial general liability, including products liability insurance, in an amount of not less than $1,000,000 per occurrence. Vendor agrees to provide WCS at least 30 days’ notice of any termination, cancellation or material modification of any insurance policy required herein. WCS shall not be under any obligation to make any payments under this Agreement until it receives a satisfactory certificate of insurance evidencing such insurance and conforming to the following requirements:
a) Vendor’s policy will be primary and include a waiver of subrogation for the benefit of WCS and the City; any insurance maintained by WCS is excess and noncontributory.
b) Wildlife Conservation Society, and, if any portion of the goods are used at or delivered to WCS’s NYC Facilities, the City, shall be named as Additional Insureds with coverage provided no less than that of Additional Insured-Vendors, ISO form #CG 20 15 04 13, and ISO form #CG 00 01. The endorsement will read as follows (which may be edited to remove the City if none of the goods will be used at or delivered to any of WCS’s NYC Facilities): “The Wildlife Conservation Society and the City of New York, including their officials and employees, are included as Additional Insureds with respect to the Commercial General Liability/Products Liability policy. Such policy is primary and non-contributing to any insurance or self-insurance
maintained by the Additional Insureds. A Waiver of Subrogation is confirmed in favor of the
Wildlife Conservation Society and the City of New York as required by contract.”
c) Insurer(s) must be authorized to do business in New York, have an A.M. Best rating of A-, VII or better and/or an equivalent rating from a recognized insurance company rating agency.
- Governing Law and Venue. This Agreement will be construed and enforced in accordance with the laws of the State of New York without regard to its choice-of-law rules. The parties hereto consent to the exclusive jurisdiction of any state or federal court located in the State of New York and County of New York empowered to enforce this Agreement and waive any objection thereto on the basis of personal jurisdiction or venue or any
B. The following additional terms and conditions apply only to Vendors providing services to WCS:
- Additional Insurance. As a supplement to the insurance requirements set forth above, for the duration of the term of the Agreement and at any time Vendor is providing services to WCS, Vendor also agrees to obtain and maintain insurance as described and in amounts not less than those set forth below, covering Vendor’s operations and those of any subcontractors, sub-subcontractors, suppliers, or any of their agents, employees, officers, directors or partners, in connection with the services provided:
Requirements for Services. In performing the Services, Vendor shall:
- Commercial General Liability
Minimum Limits: $1,000,000 per occurrence and aggregate
- Auto Liability
Minimum Limits: $1,000,000
- Worker’s Compensation
Limits: Statutory Limits
Employer Liability Limits: $1,000,000 – each accident
$1,000,000 disease – policy limit
$1,000,000 disease – each employee
Comply with all directives of WCS regarding conduct on WCS’s property, such as safety rules and regulations, and applicable laws relating to the services, including federal, state and local laws and requirements, rules, regulations, Executive Orders and ordinances. Vendor will reimburse WCS for any expenses incurred by WCS on account of any failure or alleged failure by Vendor to comply with any of the foregoing, and WCS may deduct such expenses from any amount that may otherwise be due to Vendor.
b) Take all necessary precautions for the safety of, and provide the necessary protection to prevent damage, injury, or loss to, (i) all persons on or around the work site, including Vendor’s staff and agents, employees of WCS, and the public; and (ii) other property at or adjacent to the site.
c) As directed by WCS, coordinate its efforts with those of WCS employees or any other contractor of WCS performing work adjacent or connected to the WCS property where the services will be performed. Unless otherwise agreed to by the parties, Vendor staff shall observe the working hours, working rules and holiday schedules of WCS while working at WCS’s property.
d) At the direction of WCS, after notification and an opportunity to cure, remove and, as necessary, replace any Vendor staff who is working on WCS’s property and whose work does not meet WCS’s standards or who is not cooperating in completing the work in a professional and timely manner.