Vendor is supplying WCS NYC zoos & aquarium or is located in OECD Member Country
As of April 29, 2020
Wildlife Conservation Society (“WCS”) agrees to purchase from the vendor (“Vendor”) identified in the WCS Purchase Order (the “WCS Purchase Order”) the goods and/or services described therein.
A. Unless otherwise provided in the WCS Purchase Order, the following terms and conditions apply to all Vendors providing goods and/or services to WCS:
- Acceptance. Delivery of the WCS Purchase Order to Vendor constitutes an acceptance by WCS of Vendor’s offer upon the terms and conditions stated in the WCS Purchase Order, any attachments thereto and the terms and conditions herein, which collectively constitutes an agreement (“Agreement”) binding on both parties. In the event that the terms of any attachments to this Agreement conflict with the terms herein, the terms herein shall supplement and supersede the terms of such attachments.
- 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, as applicable, (i) WCS’s acceptance of the goods as described in Section B.4 below, and/or (ii) WCS’s satisfaction with Vendor’s services and invoice as described in Section C.1 below. Vendor shall not charge a tax on goods delivered to any state or country where WCS is exempt from such tax, including, without limitation, exempt from U.S. sales tax presently in California, Connecticut, District of Columbia, New Jersey and New York, and in any other states or in any country in which WCS has or may secure any other exemptions in the future. WCS is not responsible for any taxes, tariffs, custom duties, charges or other costs not stated in the WCS 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, contractors, subcontractors and agents with regard to specific Country and United States 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 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 this 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 the WCS Purchase Order.
b) If the goods and/or services 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, and in connection with WCS’s charitable mission and businesses.
- Risk of Loss; Liability. Vendor shall hold title to and risk of loss of goods under this Agreement, until delivery and acceptance by WCS. Risk of loss of, or damage or destruction to, the goods shall pass from Vendor to WCS only upon written confirmation by WCS of acceptance of the goods. IN NO EVENT SHALL WCS BE LIABLE TO VENDOR FOR ANY DAMAGES ARISING OUT OF VENDOR’S 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 WCS 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 WCS Purchase Order or breach of this 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 WCS Purchase Order is delivered to or is performed at WCS’s zoos or aquarium in New York City, New York, U.S.A. (the “WCS NYC Facilities”) 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 and/or services within the time and manner specified in the WCS Purchase Order, or if unspecified, 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; (c) provides unsatisfactory goods and/or services; or (d) fails, or Vendor’s Agents fail, to abide by any applicable rules and regulations, including without limitation, those of WCS or any government authority. In such an event, WCS reserves all of its rights and remedies, including without limitation, taking all reasonably necessary actions to cover its interest and obtain commercially equivalent goods and/or services.
- Insurance. Vendor agrees to obtain and maintain, for the duration of the term of this Agreement and at any time Vendor is providing services to WCS, commercial general 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, if any portion of the goods will be used at or delivered to any of WCS’s NYC Facilities, the City); any insurance maintained by WCS is excess and noncontributory.
b) Wildlife Conservation Society, and, if any portion of the goods or services are used at, performed at, or delivered to a WCS 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 must include the City if any portion 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: a) the country where goods are shipped and/or received, b) in New York USA, have an A.M. Best rating of A-, VII or better and/or an equivalent rating from a recognized insurance company rating agency.
- Compliance. (a) Vendor warrants and represents to WCS that it is in compliance with, shall remain in compliance with during the term of this Agreement, and ensures that its employees, agents, contractors and subcontractors will comply with the U.S. Foreign Corrupt Practices Act, applicable U.S. economic and trade sanctions, including (without limitation) those administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of Treasury, as well as export restrictions administered by the U.S. Government, as applicable. Without limiting the generality of the foregoing, Vendor certifies and agrees that as applicable, the sale and delivery of the Goods to the Place of Delivery does not violate U.S. law or regulations, including, without limitation, federal import regulations and the Export Administration Regulations administered by the Bureau of Industry and Security of the U.S. Department of Commerce. (b) Vendor has and shall maintain in effect all the necessary licenses, permissions, authorizations, consents and permits required by law to carry out its obligations under this Agreement. Vendor shall comply with all laws applicable to the performance of this Agreement, including, without limitation, all laws applicable to Vendor’s operations, and all export and import laws of all countries involved in the sale of goods under this Agreement. Vendor assumes all responsibility for shipments of goods requiring any government import clearance. If Vendor fails to comply with the laws, orders, rules, ordinances, and regulations and as a result of that WCS is fined or penalized, Vendor agrees to pay the fine and any costs incident thereto or reimburse WCS for payment. WCS shall have the right to deduct any such fines or costs related to noncompliance from, and set-off such fines and costs against, any amounts otherwise owed by WCS to Vendor under this or any other agreement.
- Force Majeure. Neither party shall be in breach of this Agreement if its performance is materially and adversely affected by acts of government, civil unrest, terrorism, riots, military actions, border closures, labor disputes, major infrastructure disruptions, environmental disasters, extreme natural phenomena, public health crises or other causes beyond the reasonable control and without the negligence or fault of the non-performing party (each, an “Event of Force Majeure”). The non-performing party shall give prompt written notice thereof to the other party, including a description of the Event of Force Majeure. For the duration of the Event of Force Majeure, the affected requirements of this Agreement shall be suspended; provided, however, that the non-performing party shall use reasonable efforts to mitigate the effect of the Event of Force Majeure on its performance under this Agreement. After the Event of Force Majeure, the parties shall resume performance as soon as reasonably practicable, unless they agree otherwise in writing. If an Event of Force Majeure lasts over 30 consecutive days or severely undermines the primary purpose for entering into this Agreement, either party may terminate this Agreement without penalty by written notice to the other. In the event of such a termination, payment will be made goods delivered and accepted and for services satisfactorily performed. To the extent any deposit has been paid in advance in respect of goods that have not yet been delivered and accepted or services that have not yet been satisfactorily performed, such deposit shall, upon written agreement of the parties, be retained as a credit toward future services or goods or, failing such agreement of the parties, refunded in full within 30 days of the termination.
- Governing Law and Venue. This Agreement will be construed and enforced in accordance with the laws of the State of New York, U.S.A, without regard to its choice-of-law rules. Unless otherwise specified in this Agreement, the parties hereto consent to the exclusive jurisdiction of any state or federal court located in the State and County of New York, U.S.A, empowered to enforce this Agreement and waive any objection thereto on the basis of personal jurisdiction or venue or any other basis.
- General. (a) The rights and remedies arising under this Agreement are cumulative and do not exclude any rights or remedies provided at law or in equity. (b) The rights and remedies of WCS may be waived only in writing and specifically, and any failure to exercise or any delay in exercising a right or remedy by WCS shall not constitute a waiver of that or any other right or remedy. (c) A person who is not party to this Agreement shall not have rights to enforce any term of this Agreement. (d) Nothing in this Agreement is intended to create a partnership or legal relationship of any kind that would impose liability upon one Party for the act or failure to act of the other Party, or to authorize either Party to act as agent for the other. (e) The invalidity, unenforceability or illegality of any provision (or part of a provision) of this Agreement under the laws of any jurisdiction shall not affect the validity, enforceability or legality of the other provisions (or partial provisions). (f) Any modification made to this Agreement shall be mutually agreed upon in writing by the parties. (g) Upon termination or expiration of this Agreement, the provision of this Agreement that by their context are intended to survive the expiration or termination of this Agreement shall survive.
B. Unless otherwise provided in the WCS Purchase Order, the following additional terms and conditions apply only to Vendors providing goods to WCS:
- Additional Insurance. As a supplement to the insurance coverage set forth above, Vendor also agrees to obtain and maintain products liability insurance in an amount of not less than $1,000,000 per occurrence. The certification and other requirements set forth above shall also apply to this additional coverage.
- Shipping and Packing. (a) All goods to be shipped to WCS must be insured for the full amount of the goods. It is the responsibility of the shipper to assure that the goods are shipped out timely and with a responsible delivery service. (b) Vendor shall provide such packing of the goods as is required to prevent their damage or deterioration during transit to their final destination, as indicated in the WCS Purchase Order. During transit, the packing shall be sufficient to withstand, without limitation, rough handling, and exposure to extreme temperatures, salt and precipitation, and open storage. Packing case size and weights shall take into consideration, if appropriate, the remoteness of the goods final destination and the absence of heavy handling facilities at all points in transit. (c) The goods shall be packaged appropriately and according to any WCS special instructions. WCS must be able to identify easily all items of the goods contained within each carton.
- 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 (10) 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 the Agreement. WCS will not be deemed to have accepted the goods within such period before inspection. WCS, in its sole option, may reject all or any portion of the goods if it determines they are defective or nonconforming. At WCS’ election, Vendor shall either promptly replace the nonconforming goods at its own expense or refund any prior payment(s) made to Vendor. 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.
- Warranty and Performance. Vendor warrants that any goods sold under this Agreement will be in conformity with WCS’s specifications and industry standards, 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.
C. Unless otherwise provided in the WCS Purchase Order, the following additional terms and conditions apply only to Vendors providing services to WCS:
- Payment for Services. WCS’s payment will be due upon WCS’s satisfaction with Vendor’s services, and receipt of Vendor’s invoice in a form satisfactory to WCS.
- Additional Insurance. As a supplement to the insurance coverage set forth above, for the duration of the term of this 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 Vendor’s Agents, in connection with the services provided:
The certification and other requirements set forth above shall also apply to these additional coverages.
- Commercial General Liability
Minimum Limits: $1,000,000 per occurrence and aggregate
- Auto Liability (if any vehicles are used in Vendor’s performance of the services)
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
- Requirements for Services. In performing the Services, Vendor shall:
a)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, Vendor’s 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 and Vendor’s Agents 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 of Vendor’s staff or Vendor’s Agents 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.
- Warranty and Performance. Vendor warrants that any services provided under this Agreement will be in conformity with WCS’s specifications and/or scope of work, and will be performed in a good and workmanlike manner, in compliance with applicable law, and consistent with the skill and care ordinarily provided by vendors practicing in the same or similar locality under the same or similar circumstances.