1. These Terms and Conditions govern all purchases of goods or services by The New York Public Library (the “Library” or “NYPL” or “Purchaser”) and shall supersede any conflicting terms and conditions included by Seller in any documentation provided by Seller to NYPL. By providing NYPL with goods or services, Seller agrees to these Terms and Conditions. Please note: These Terms and Conditions shall only apply to the extent that there is not a signed agreement that addresses the issues covered below.
2. Payment to Seller is contingent upon receipt and acceptance of goods and/or services at final destination. Discount periods shall be calculated either from the date of receipt of acceptable invoice or from date of goods and services receipt and acceptance, whichever is later. Errors, omissions or delays in receiving invoices shall be considered just cause for withholding payment without loss of cash discount privilege.
3. Seller shall suitably pack, mark and ship all goods in accordance with normal procedures and the requirements of common carrier or any written instructions from Purchaser. Seller shall secure the lowest-cost transportation available consistent with the service required. Delivery of any goods or services shall not be deemed to be complete until actually received and accepted by Purchaser. Notwithstanding any agreement to pay freight, transportation charges, or to make payment or advances on account, unless otherwise agreed to by NYPL, title and the risk of loss or damage shall remain with Seller until the goods are accepted by Purchaser. Purchaser’s count will be accepted as final and conclusive on all shipments. Items delivered in error shall be returned at Seller’s expense at Purchaser’s option.
4. All goods and services shall be subject to inspection by Purchaser at all reasonable times, including inspection during manufacture. Inspection and approval by Purchaser at Seller’s plant does not preclude rejection for effects upon discovery by subsequent inspection. Any goods and services rejected by Purchaser shall be promptly repaired or replaced at Seller’s expense. Any and all costs incurred by Purchaser in connection with the return of goods rejected by Purchaser as defective shall be for the account of Seller. Seller represents and warrants to NYPL that products sold to NYPL: (i) comply with all applicable International, EU, and US federal, state and local regulations or laws, including but not limited to the Consumer Product Safety Improvement Act of 2008 (CPSIA), LLAMA, ASTM, CPSA, FDA, FHSA & FFA; (ii) have been tested in accordance with such laws and passed all required tests with proper documentation; (iii) will include any necessary warnings and caution statements required by applicable International, EU, US federal, state and local regulation or laws; and (iv) will not contain any phthalates.
5. Seller warrants that it has good and merchantable title to the goods sold to NYPL and that said goods shall conform to the description and applicable specifications and samples. Such goods shall be of good merchantable quality and fit for the known purposes for which sold and are free and clear of all liens and encumbrances. This is in addition to any warranty or services guarantee given by Seller to Purchaser or provided by law.
6. If Seller shall be adjudged bankrupt, or become insolvent, or file for voluntary bankruptcy or be subjected to involuntary bankruptcy proceedings, or enter receivership proceedings, or make an assignment for the benefit of creditors, or if Seller should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough properly skilled workmen or proper materials, or if Seller should fail to make prompt payment to sub-suppliers for materials or labor, or otherwise is guilty of a violation of any provision of this agreement, including delivery delays beyond fifteen (15) days after specified delivery date, then Purchaser, without prejudice to any of the other rights or remedies expressly provided for herein, may terminate its agreement with Seller, or any part thereof, by written notice to Seller and shall have the right thereafter to take possession of all materials, equipment and the like, the cost of which has been reimbursed by Purchaser to Seller. In such cases of termination, Purchaser shall be relieved of all further obligations hereunder.
7. Seller warrants that unless specifically exempted, all goods furnished under this contract have been manufactured, processed and delivered in full conformance with all applicable laws and regulations including, but not limited to, the Fair Labor Standards Act, as amended, the Civil Rights Act of 1964, the Equal Employment Opportunity Act of 1972, Executive Orders 11246, 11375 and 11141 (Title 41, Chapter 60 Code of Federal Regulations), the Vietnam Era Veterans Readjustment Act of 1974, Executive Order 11701 and Title 41 Section 50.250.2 Code of Federal Regulations, the Rehabilitation Act of 1973, Executive Order 11758 and Title 20, Chapter VI, Part 741 Code of Federal Regulations, Executive Order 11458 and Title 41 Subpart 1-1.13 Code of Federal Regulations relating to Minority Business Enterprises, the Transportation Safety Act of 1970 (Public Law 93- 633), and all amendments thereto and all regulations, rules and orders there under. Seller hereby agrees that all the provisions of the above Orders, Acts, Rules and Regulations as they may be amended or superseded are hereby made a part thereof by reference and are binding upon Seller. Seller certifies that he will comply with the provisions of the Occupational Safety and Health Act (OSHA) of 1970, including all amendments thereto and all standards and regulations issued there under, and that all goods furnished and all work performed hereunder will comply with said standards and regulations.
8. Seller agrees to protect, defend, reimburse, indemnify and hold Purchaser, its affiliates, Trustees, employees and agents (as well as the City of New York), and each and every one of them, free and harmless at all times from and against any and all claims, liabilities, expenses, losses, demands, damages, fines and causes of action of every kind and character from any cause whatsoever, made, incurred, sustained or initiated by any party hereto, any party acquiring any interest hereunder, any agent or employee of any party hereto or of any party acquiring an interest hereunder any third or other party whomsoever, or any governmental agency, arising out of, incident to or in connection with the purchase order, or the performance, nonperformance or purported performance of the work or services or breach of the terms hereof; provided, however, that Seller shall not be responsible to Purchaser for damages arising out of bodily injury or damage to property attributable to the sole negligence of Purchaser, its affiliates or their respective employees or agents.
9. During the performance of all work hereunder, Seller shall take out, carry and maintain in insurance company or companies, and in policies of insurance acceptable to Purchaser, the following insurance with limits not less than indicated for the respective items:
a. Workmen's Compensation and Occupational Disease Insurance, including Employer’s Liability Insurance, complying with laws of the State in which the work is to be performed or elsewhere as may be required. Employer’s Liability insurance shall be provided with a limit no less than $1,000,000.
b. Comprehensive General Liability Insurance, including Contractual Liability and Products Completed Operations Liability as well as coverage on all Seller’s equipment (other than motor vehicles licensed for highway use) owned, hired or used in performance of this contract with limits not less than: $300,000 – Bodily Injury & Property Damage combined each occurrence and aggregate.
c. If performance of this contract requires use of motor vehicles licensed for highway use, Seller shall provide the following insurance: Automobile Liability Insurance, including Contractual Liability, covering all motor vehicles owned, or hired or used in the performance of this contract, with limits not less than: $500,000 – Bodily Injury & Property Damage combined each occurrence. Should Purchaser so request, Seller shall supply certificates evidencing coverage of such insurance during the term of this contract.
10. Seller agrees that he is an independent contractor in the performance of any work hereunder and that neither he nor his employees shall be considered employees of Purchaser. Purchaser shall not be responsible for the direct payment of any withholding taxes, social security payments, payments under workmen’s compensation or other insurance premiums, or other charges of any kind or nature, except as specifically outlined herein. Seller hereby certifies that he will deduct and pay over to the proper governmental authority, any withholding taxes or similar assessments which an employer is required to deduct and pay over. Seller accepts exclusive liability for any payroll taxes or contributions imposed by any federal, state or other governmental authority, covering its agents or employees.
11. Seller warrants that the use or sale of any goods purchased hereunder will not infringe any U.S. or foreign patent, copyright or any other property right (except infringement necessarily resulting from adherence to specification or drawings, other than those of Seller’s design or selection, originally submitted to Seller by Purchaser). Seller undertakes and agrees to defend at Seller’s own expense, all suits, actions, or proceedings in which Purchaser is made a defendant for actual or alleged infringement of any such U.S. or foreign patent, copyright or other property right resulting from the use or sale of the goods purchased hereunder and further agrees to pay and discharge any and all judgments or decrees which may be rendered in any such suit, action or proceedings against Purchaser.
12. Seller agrees that Seller shall not use the Library's name or the
name of any of its constituent parts or branches or any of the Library's
marks or logos for any promotional or similar purposes without the prior
written approval of the Library.
13. Ownership of all rights with respect to any goods and services purchased under this contract, including all creative ideas incorporated therein, all preliminary materials, sketches, layouts, tooling, molds, dies, negatives, photographs, designs, blueprints, or specifications relating thereto shall be vested exclusively in Purchaser. Purchaser may copy or reproduce any and all goods or services purchased hereunder for any and all purposes and may use the same in any and all media as often as it may so desire.
14. Obligations of either Purchaser or Seller shall be suspended when and solely to the extent that performance is delayed or prevented due to causes beyond the control of either party, including but not limited to acts of God, fire, explosion, war, riots, strikes or governmental laws, orders or regulations.
15. Neither this contract nor any claim against Purchaser arising directly or indirectly out of or in connection with this contract shall be assignable by Seller without Purchaser’s written consent.
16. The parties agree that this contract sets forth their entire agreement and there are no promises or understandings other than those stated herein.
17. No amendment, modification or supplement to this contract shall be binding unless it is in writing and signed by the Purchaser’s authorized representative. All notices under this contract shall be in writing and addressed to Purchaser or Seller as the case may be and directed to the individuals specified on the face of this contract.
18. All plans, drawings, designs and specifications supplied by Purchaser to Seller shall remain the property of Purchaser. Any information derived there from or otherwise communicated to the Seller shall be regarded by him as strictly confidential and shall not without the prior written consent of Purchaser be disclosed to any third party.
19. No waiver by either party of any breach of any of the covenants or conditions herein contained, performed by the other party shall be construed as a waiver of any succeeding breach of the same or of any other covenant or condition.
