Purchase Orders: General Terms & Conditions
PURCHASING TERMS AND CONDITIONS
These Purchase Order Terms and Conditions, and any attachments hereto (collectively, the “Purchase Order”) are the exclusive terms and conditions for the delivery of the specified goods (“Goods”) by the named seller (“Seller”) for the benefit of The New York Public Library (“NYPL”). NYPL and Seller are each a “Party” and together are the “Parties”.
1. Acceptance by NYPL. Delivery of the Goods will be deemed to be complete only when delivered pursuant to a valid Purchase Order and when actually received by NYPL. All Goods are subject to NYPL’s right of inspection following delivery by Seller; payment for Goods under this Purchase Order prior to inspection by NYPL will not constitute acceptance by NYPL. NYPL may, at its option, reject all or any portion of the Goods that do not, in NYPL’s discretion, comply with the terms and conditions of this Purchase Order or NYPL’s requirements. NYPL may elect to reject all of the Goods even if only a portion is nonconforming. In any case, acceptance of all or any part of the Goods will not be deemed to be a waiver by NYPL of its right to (a) cancel, reject or return all or any portion of the Goods, or (b) make a claim for damages, for reasons including defect, breach of warranty, late delivery, or breach or non-compliance with any of the terms or provisions of this Purchase Order.
2. Time for Delivery. Time is of the essence with respect to Seller’s delivery of the Goods under this Purchase Order. Delivery will be strictly in accordance with NYPL’s delivery schedule. If Seller’s delivery fails to meet such schedule, NYPL may, without limiting any of its other rights or remedies, direct expedited routing or performance by one or more third parties, and the difference between the cost of that expedited routing and this Purchase Order’s routing costs will be paid by Seller upon NYPL’s demand.
3. Risk of Loss. Until delivered to NYPL in accordance with Section 1, Seller will bear all risk of loss or damage. Shipment of Goods is D.D.P./F.O.B. Destination unless Purchase Order states otherwise.
4. Cancellation for Breach by Seller. NYPL may terminate this Purchase Order, in whole or in part, for Seller’s breach of this Purchase Order, including but not limited to, the failure to deliver the Goods as and when specified. If NYPL terminates this Purchase Order for Seller’s breach, in addition to all of NYPL’s other rights and remedies under law, Seller will be liable to NYPL for all damages, including but not limited to, the cost of securing replacement Goods, shipping charges for returned Goods, and any amounts previously paid by NYPL to Seller. Cure of any non-conforming tender by Seller may only be made with the prior written consent of NYPL. This right of termination is in addition to and not in place of any other rights or remedies that NYPL may have at law or in equity.
5. Cancellation for Convenience. NYPL, in its sole discretion and without cause, may terminate this Purchase Order, in whole or in part, at any time without incurring liability to Seller for lost profits, or any other costs or damages, other than the proportionate value of the purchase price for Goods delivered and accepted. Payment due will be the unit prices for Goods delivered and accepted by NYPL.
6. Pricing. NYPL will pay Seller only for such Goods and at such prices as agreed upon pursuant to this Purchase Order. Prices include all amounts payable by NYPL and no additional charges of any kind (including, without limitation, charges for transportation, delivery, boxing, packing or other extras) will be payable by NYPL unless specifically set forth in this Purchase Order or otherwise specifically agreed to in writing by an authorized purchasing agent of NYPL. Seller will submit all invoice(s) to NYPL under this Purchase Order as set forth herein or as may be designated by NYPL. NYPL shall exercise reasonable efforts to pay invoices within forty-five (45) days after each such invoice is received and approved by NYPL.
7. Representations and Warranties. In addition to, and without limiting any of Seller’s other representations and warranties, express or implied, Seller expressly represents and warrants to NYPL that: (a) all Goods conform and will continue to conform to professional industry standards and to any description, sample, specifications or other documentation related to the Goods made available to NYPL; (b) the Goods are and will be fit for the purposes for which purchased, free from defects in materials and workmanship, and safe for their intended use; (c) Seller has all right, title and interest in and to the Goods necessary to fulfill its obligations hereunder; (d) the Goods are free from any liens, claims and encumbrances of any nature and do not and will not infringe the intellectual property rights of any third party; and (e) all Goods will have been produced or manufactured in accordance with the requirements of the Fair Labor Standards Act of 1938, as amended, and all other applicable federal, state and municipal laws, rules and regulations. All of Seller’s representations and warranties, both express and implied, also constitute conditions of this Purchase Order and will survive inspection, acceptance and payment by NYPL. In the event that the Goods are found to be defective or fail within the warranty period, Seller will at its own expense promptly repair defective Goods. All warranty repairs, modifications, product improvements, corrections, and replacements made by Seller in accordance to the Purchase Order will be at Seller’s expense, including, but not limited to, labor, materials, and freight.
8. Proprietary Rights. Unless otherwise agreed in writing, the Goods will be deemed to be “work made for hire” and NYPL will own all right, title, and interest in and to the Goods and each part and component thereof, whether or not patentable or copyrightable, and any copyright therein and patent application or patent thereon. Seller agrees that all right, title and interest in and to the Goods has been transferred and assigned to NYPL. If for any reason it is determined that any such material is not a “work made for hire,” Seller hereby assigns all right, title and interest, including copyright or patent interest, therein to NYPL.
9. Force Majeure. Neither Party will have responsibility to the other due to circumstances beyond that Party’s reasonable control, including (without limitation) any act of God, war or public enemy, or any act of government or any agency thereof, or any fire, flood, explosion or other catastrophe, or any epidemic or quarantine restriction, or any act of sabotage or terrorism, or any strike, lockout or other work stoppage, slowdown or dispute.
10. Compliance with Laws and NYPL Policies. Seller will comply with all applicable international, foreign, and U.S. federal, state and local laws, rules and regulations, including, but not limited to, all applicable laws and regulations pertaining to privacy and confidentiality. Seller will not violate U.S. export control and economic sanctions laws, including, but not limited to, the U.S. Department of Commerce’s Export Administration Regulations and the economic sanctions programs administered by the U.S. Department of Treasury, nor take any other action that would cause NYPL to be in violation of U.S. export control and economic sanctions laws. Seller will obtain and maintain, and furnish to NYPL upon request, any and all permits, licenses, approvals, certificates and other documents required by NYPL or otherwise required by applicable law.
11. Indemnification. Seller hereby agrees to defend, indemnify and hold harmless The City of New York as well as NYPL, its Trustees, officers, agents and employees against any and all damages, claims, expenses or other liability, including attorneys' fees, arising out of any (a) alleged or actual infringement or misappropriation of any copyright, patent, trademark, trade secret or other right based upon the Services or deliverables provided by Seller pursuant to this agreement; (b) negligence or willful misconduct of Seller; (c) Seller’s failure to perform fully its obligations herein in a timely manner; or (d) breach of any of Seller’s representations and warranties herein. Seller shall select counsel reasonably appropriate for the defense of any such claim and shall pay all costs in connection therewith. NYPL shall be granted permission to have the right to participate in the defense or settlement of any such claim with counsel of its choice at its own expense.
12. Insurance. Seller shall maintain the following coverages with the insurance limits as specified herein and Seller will also require that all of its subcontractors and vendors or others engaged by the sellers shall maintain the same coverages and limits:
(1) Workers’ compensation insurance and statutory disability insurance as required by law for all persons, including, as a minimum, employer’s liability limits of $1,000,000 each accident/$1,000,000 each employee for bodily injury or by disease/$1,000,000 policy limit, with coverage (except for disease); Policy must be endorsed to cover the State of New York. No exclusions for sole proprietors or executive officers are acceptable if present at NYPL premises.
(2) Commercial general liability insurance with respect to injuries and death to persons and/or damage to property, written on an “occurrence” basis as additional insureds, with a combination single limit of $1,000,000 per occurrence/$2,000,000 per project general aggregate. Including premises/operations, products/completed operations and contractual liability.
(3) A policy of automobile liability insurance in an amount of not less than $1,000,000 combined single limit including owned/hired and non-owned autos
(4)$4,000,000 umbrella liability following form over the General Liability, Workers Compensation and Automobile primary coverages above.
(5) The above coverages with the exception of the Workers Compensation, must name the City of New York and The New York Public Library, Astor, Lenox and Tilden Foundations and its Trustees, officers, agents and employees as additional insureds (with respect to general liability, automobile liability and umbrella insurance) and containing a waiver of subrogation by insurer with respect to NYPL and the above-referenced additional insureds (with respect to general liability, automobile liability, umbrella, and worker’s compensation). All coverages shall be primary non-contributory with the exception of the workers compensation. The policies required above shall not contain any exclusions that limit the coverage for the work/product under this agreement.
NYPL reserves the right to require other coverages if the product or services contain additional exposures not contemplated in the current requested coverages above.
Seller shall provide a certificate of insurance prior to providing any products or services for the buyer for all policies in effect for the entire duration of the Purchase Order and for 3 years after final completion. NYPL also reserves the right to request copies of actual policies or endorsements.
13. Governing Law. This Purchase Order will be governed by and construed according to the laws of the State of New York without regard to principles of conflicts of law. Any and all actions or proceedings relating to the subject matter of this Purchase Order will be maintained by and subject to the jurisdiction of state and federal courts located in New York County, New York, which courts will have exclusive jurisdiction for such purposes. NYPL may serve any summons or process in any such proceeding on Seller in the manner for giving notices under this Purchase Order. The Parties waive the right to a trial by jury in any action or proceeding relating to this Purchase Order.
14. NYPL Tax-Exempt. NYPL, a not-for-profit education corporation, is generally exempt from federal, state and local taxes for purchases made in furtherance of exempt mission, including New York sales and use tax and federal excise tax. Seller will not charge NYPL for any taxes in connection with the Purchase Order to the extent permitted by law. NYPL will supply its tax exempt number and/or copies of its exemption certificates to Seller upon request from Seller.
15. Confidential Information. Seller and its employees, agents and subcontractors will hold in confidence and not disclose, distribute, sell, copy, share or otherwise use NYPL’s “Confidential Information,” which includes (i) any information about or relating to the Goods, and (ii) any information obtained, learned, received, or developed by Seller that relates to the employees, patrons, research, development, plans, business affairs, property, records, processes, techniques, or equipment of NYPL. Upon completion of its performance under or termination of this Purchase Order, Seller will return to NYPL all Confidential Information, and any copies thereof.
16. Funding. If the Purchase Order involves funds from the United States Government pursuant to a contract with or grant from the United States Government, Seller will comply with the United States Government Funding Provisions attached hereto as Attachment A and incorporated as if set forth fully herein. If the Purchase Order involves funds from the City of New York, Seller shall comply with all City funding requirements including, but not limited to, being VENDEX approved in accordance with the Procurement Policy Board Rules. Contractor agrees to flow down all applicable requirements to lower-tier subcontractors.
17. Right to Audit. Seller shall maintain complete and accurate records of all financial transactions associated with this agreement, including, but not limited to, invoices and other official documentation which sufficiently support all charges under this agreement. Seller shall retain such records for six (6) years after final payment, or longer if required by law. Authorized representatives of NYPL may inspect and copy records pertaining to this agreement at the Seller’s business office during normal business hours. Seller shall include this audit provision in any subcontracts that it may issue under this agreement.
18. Notices. All notices to be given hereunder will be in writing and will be delivered by overnight carrier or United States Mail (if to NYPL, addressed to The New York Public Library, Office of Procurement and Risk Management, attn: Purchase Order Notice, 445 Fifth Avenue, 8th Floor, New York, NY 10016 with a copy to Office of the General Counsel, The New York Public Library, 445 Fifth Avenue, 4th Floor, New York, NY 10016. Notices to the Seller shall be sent to the address provided on the Purchase Order Form, if NYPL has an email address for the Seller, NYPL may send Seller notices by email.
19. Use of Name. Unless specifically agreed to in writing by NYPL, Seller agrees that it shall not use NYPL’s name or the name of any of its constituent parts or branches or any of NYPL’s marks or logos for any promotional or similar purposes without the prior written approval of NYPL.
20. Product Recall Notification. If there is a product recall affecting any Goods, Seller shall promptly send written notification of recall including instructions for disposal and replacement to The New York Public Library, Office of Procurement and Risk Management, attn: Recall Notification, 445 Fifth Avenue, New York, NY 10016. Seller must also send a copy of recall notification to the end user as indicated on the ship-to information.
21. Miscellaneous. This Purchase Order will be binding on the Parties and their respective successors and permitted assigns. Seller may not assign this Purchase Order or any of its rights and obligations hereunder (including its right to receive payment) without NYPL’s express prior written consent. Any attempted assignment by Seller without such consent will be null and void for all purposes. If NYPL consents to an assignment, Seller will remain primarily responsible for any and all Goods delivered or performed by such assignee or subcontractor as if performed or delivered by Seller. Seller may not modify, waive or supplement this Purchase Order or any term or condition thereof without the written agreement of NYPL. This Purchase Order may be changed or modified by NYPL by a written instrument signed by NYPL’s authorized representative. The failure of NYPL to insist, in any one or more instances, upon performance of any of the terms, covenants or conditions of this Purchase Order, or to otherwise exercise any right or remedy under this Purchase Order or otherwise, will not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition, or of the future exercise of such right or remedy, but rather the obligation of Seller with respect to that future performance will continue in full force and effect. If any provision of this Purchase Order is determined to be invalid, void or unenforceable in any respect, the remaining provisions hereof will continue in full force and effect. This Purchase Order is not for the benefit of any third parties. Nothing contained herein will create any agency, partnership, association, or joint venture between the Parties. The relationship of Seller to NYPL is that of independent contractor solely and Seller is directly responsible for the mode, method, and manner of its activities. Under no circumstances, as a result of this Purchase Order, will Seller or any of its employees, agents, or representatives be considered an employee, agent, or representative of NYPL. Notwithstanding the provisions of any other document, writing, representation, agreement, proposal, promise, or other understanding, oral or otherwise, between Seller and NYPL, including but not limited to any prior or subsequent price quotation, invoice, confirmation or other document furnished by Seller (collectively, “Extraneous Terms”), this Purchase Order constitutes the entire agreement between Seller and NYPL regarding the subject matter of this Purchase Order and supersedes all Extraneous Terms with respect to the matters contained herein. All provisions that logically ought to survive termination of this Purchase Order shall survive.
If this agreement is entered into in connection with a grant or cooperative agreement between NYPL and the federal government, the provisions of 2 CFR 200, Uniform Guidance (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards) this agreement. Contractor agrees to flow down all applicable clauses to lower-tier subcontractors.
2 CFR 200, UNIFORM GUIDANCE
All contracts awarded by the NYPL, and any subcontracts awarded by the NYPL’s contractors, must contain the provisions listed below, as applicable. Since all contractors will have to certify to these provisions in their contracts with their NYPL, it is advisable to list these certifications in the Requests for Proposals, so that potential vendors are aware of these requirements when they prepare their bids. Therefore, these certifications should appear in both the RFPs and in the final contracts.
Contracts of $100,000 and less
1. Equal Employment Opportunity - Contracts shall contain a provision requiring compliance with E.O. 11246, "Equal Employment Opportunity," as amended by E.O. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and as supplemented by regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor."
2. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) - Contractors shall certify that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant or any other award covered by 31 U.S.C. 1352. Contractors shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award.
3. Debarment and Suspension (E.O.s 12549 and 12689) - No contract shall be made to parties listed on the General Services Administration's List of Parties Excluded from federal Procurement or Non-Procurement Programs in accordance with E.O.s 12549 and 12689, "Debarment and Suspension." This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than E.O. 12549. Contractors with awards of more than $100,000 shall provide the required certification regarding its exclusion status and that of its principal employees.
Contracts of more than $100,000
1. All of the provisions listed for contracts of $100,000 or less also apply here.
2. Remedial Actions and Termination - Contracts should contain conditions that allow for administrative, contractual, or legal remedies in instances in which a contractor violates or breaches the contract terms, and provide for such remedial actions as may be appropriate. Contracts should also contain suitable provisions for termination by the recipient, including the manner by which termination shall be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor.
3. Access to Project Documents - Contracts shall include a provision to the effect that The New York Public Library, the federal awarding agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the contractor that are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts, and transcriptions.
4. Clean Air Act (42 U.S.C. 7401 et seq.) and the federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended - Contracts shall contain a provision that requires the recipient to agree to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq.) and the federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
Contracts Involving Construction or Laborers
Depending on contract amount, the provisions for Contracts of more than $100,000 or Contracts of $100,000 and less also apply here.
1. Except as otherwise required by statute, an award that requires the contracting (or subcontracting) for construction or facility improvements shall provide for the recipient to follow its own requirements relating to bid guarantees, performance bonds, and payment bonds unless the construction contract or subcontract exceeds $100,000. For those contracts or subcontracts exceeding $100,000, the federal awarding agency may accept the bonding policy and requirements of the recipient, provided the federal awarding agency has made a determination that the federal Government's interest is adequately protected. If such a determination has not been made, the minimum requirements shall be as follows.
(1) A bid guarantee from each bidder equivalent to five percent of the bid price. The "bid guarantee" shall consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder shall, upon acceptance of his bid, execute such contractual documents as may be required within the time specified.
(2) A performance bond on the part of the contractor for 100 percent of the contract price. A "performance bond" is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of the contract price. A "payment bond" is one executed in connection with a contract to assure payment as required by statute of all persons supplying labor and material in the execution of the work provided for in the contract.
(4) Where bonds are required in the situations described herein, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties pursuant to 31 CFR part 223, "Surety Companies Doing Business with the United States."
2. Copeland "Anti-Kickback" Act (18 U.S.C. 874 and 40 U.S.C. 276c) - Contracts in excess of $2,000 for construction or repair shall include a provision for compliance with the Copeland "Anti-Kickback" Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. All suspected or reported violations shall be reported to the federal awarding agency.
3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7) - Construction contracts of more than $2,000 shall include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to a-7) and as supplemented by Department of Labor regulations (29 CFR part 5, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction"). Under this Act, contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less than once a week. The Library shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage determination. All suspected or reported violations shall be reported to the federal awarding agency.
4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333) - Where applicable, all contracts in excess of $2,000 for construction and in excess of $2,500 for other contracts that involve the employment of mechanics or laborers shall include a provision for compliance with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor regulations (29 CFR part 5). Under Section 102 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than 1 ½ times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions that are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
5. All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity including the manner by which it will be effected and the basis for settlement.
Contracts of more than $150,000
1. Contracts for more than the simplified acquisition threshold currently set at $150,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.
2. Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended — Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
Contracts for the Performance of Experimental, Developmental, or Research Work
- Depending on contract amount, the provisions for Contracts of more than $100,000 or Contracts of $100,000 and less also apply here.
- Rights to Inventions Made Under a Contract or Agreement - Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the federal government and the recipient in any resulting invention in accordance with 37 CFR part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency.
Conflicts between Clauses Applicable to the Purchase Order
In the event of any conflict among the clauses applicable to the Purchase Order, including those not applicable solely to federal grants and/or contracts, the most stringent clause will apply.