Purchase Order Terms and Conditions

Purchase Order Terms and Conditions were last updated March 30, 2018.

1. Acceptance: Acknowledgment hereof by Seller to The Metropolitan Museum of Art [MMA], or in the absence of such acknowledgment, delivery of the goods and/or services, or any part thereof shall constitute Seller's acceptance of the Order, including all of the terms and conditions herein set out.

2. Delivery Dates: The delivery dates specified herein are of the essence of this Order. Acceptance of a late delivery shall not be construed as a waiver of MMA's rights.

3. Price: If prior to shipment, there is any reduction in Seller's regular selling price for the goods described herein, the specified price, will be reduced to Seller's regular selling price prevailing at the time of shipment of such goods. In no event will the price exceed quoted price. If there are charges for boxing, packing or cartage, they must be included in the quote provided to MMA. Freight charges shall be listed on the Purchase Order as "not to exceed." Any pass-through charges shall be billed at cost with appropriate documentation to MMA.

4. Invoices and Payments:

a. Invoices shall be rendered on completion of services or delivery of goods, or every 30 days if applicable, and shall contain the Purchase Order Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to one, and only one, purchase order.

b. Payments are made subject to final inspection and acceptance. Payment for goods under this Order prior to inspection by MMA will not constitute acceptance by MMA.

c. MMA standard payment terms are Net 30 unless otherwise negotiated.

5. Set-off: All claims for monies due or to become due from MMA shall be subject to deduction by MMA for any set-off or counterclaim arising out of this or any other of MMA's Orders with Seller.

6. Taxes: As a not-for-profit institution, MMA is exempt from New York State and Local Sales and Use Tax, and such tax shall not be included in any invoice rendered to MMA.

7. Shipment:

a. Instructions: Shipments shall be in accordance with instructions given herewith, or in the absence of such instructions, in accordance with Seller's practice.

b. Packaging and Identification: All shipments shall be securely packed. Shipments shall adhere to any packing and shipping instructions provided by MMA A receipt or bill of lading, signed by the Carrier evidencing the fact that Seller has made shipment, and packing list must accompany each shipment. Purchase Order number, SKU # or Part #, description of contents and name of requisitioner or department must appear on each packing list.

c. Hazardous Materials: Such materials must be properly classed, described, packaged, marked, labeled, in proper condition for shipment and accompanied by a Material Safety Data Sheet as required or as required by law or best practice.

d. Rejection: Material shipped in excess of quantity ordered may be returned at Seller's expense and risk.

e. Title: Risk of loss or damage shall pass to MMA when, but not until, the goods arrive at the designated final destination, or the services are complete and are accepted by MMA.

8. Warranties: Seller expressly warrants that:

a. all goods or services delivered hereunder are free from latent or patent defects in material and/or workmanship, merchantable, fit for any stated purpose and conform strictly to the specifications, drawings or samples specified, or furnished;

b. all weights, measures and descriptions of the goods specified herein are true and correct;

c. all "shelf-life" material is no more than six months old at the time of delivery and is accurately labeled with the date of manufacture; and

d. all goods furnished and all services performed comply with all applicable federal, state and municipal laws, rules, regulations, standards and executive orders including but not limited to the Occupational Safety and Health Act, the Equal Employment Opportunities Act, and the Consumer Product Safety Improvement Act.

9. Work on MMA Premises: If Seller's work under this Order requires Seller to be on the MMA premises or at MMA's direction, Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of MMA.

10. Indemnity and Insurance:

a. Seller agrees to defend, indemnify, and hold harmless MMA, its officers, trustees, employees, agents and contractors from and against: i. all claims, liability, loss, damage or expense incurred or sustained by MMA by reason of any breach of any warranty, term or condition hereof, and such warranties and obligations shall survive inspection and acceptance of the goods and payment therefor by MMA; ii. any and all claims, including but not limited to claims for Workers' Compensation, liability, loss or expense incurred by MMA on account of personal injury or death of any person, and/or for any and all property damage caused or alleged to have been caused by the acts or omissions of Seller, its employees, agents or contractors, and such obligation shall survive inspection and acceptance of the goods and payment therefor by MMA. In addition, Seller will, at MMA’s election, repair or replace or reimburse MMA for the cost of repairing or replacing any real or personal property damaged, lost or destroyed in the performance of this Order.

b. Seller shall maintain the following insurance coverage: workers’ compensation insurance at the statutory limits; employers liability insurance with minimum limits for bodily injury of 1,000,000 per each accident, $1,000,000 by disease for the policy limit, and $1,000,000 by disease for each employee; commercial general liability insurance with a combined single limit of $1,000,000 on a per project basis for bodily injury, property damage, personal injury and advertising injury; comprehensive automobile liability, if appropriate, with a combined single limit of $1,000,000 for bodily injury and property damage and excess liability coverage with a combined single limit of $10,000,000 in excess of each of the coverages listed above. MMA and the City of New York must be named as an additional insured in the General Liability and Umbrella/Excess Liability policies, which must be primary and non-contributory with any insurance MMA has. All liability coverage must be on an occurrence basis. The Workers’ Compensation and General Liability policies must be endorsed to waive subrogation against MMA and the City of New York. Insurance companies must be licensed in New York and subject to the approval of MMA. MMA reserves the right to require Seller to furnish certificates of such insurance.

11. Labor Disputes: Whenever an actual or potential labor dispute is delaying or threatening to delay the timely performance of this Order, seller shall immediately give MMA notice thereof.

12. Intellectual Property: Seller agrees to defend, indemnity and hold harmless MMA, its successors, assigns, customers and users of the goods and services from and against all claims, liability, loss, damage or expense arising from or by reason of any actual or claimed intellectual property infringement, including but not limited to patent, trademark, trade secret, copyright, or the rights of privacy or publicity, and such obligations shall survive inspection and acceptance of the goods and payment therefor by MMA.

13. Termination: If Seller ceases to conduct its operations in the normal course of business, including inability to meet its obligations as they mature, or if any proceeding under the bankruptcy or insolvency laws is brought by or against Seller, or a receiver for Seller is appointed or applied for or an assignment for the benefit of creditors is made by Seller, MMA may terminate the Order without liability, except for deliveries previously made or for goods covered by the Order then completed and subsequently delivered in accordance with the terms hereof.

14. Cancellation:

a. If delivery or shipment is not made strictly as specified, or if all or any part of the goods delivered are not strictly in accordance with the terms of this Order, or if Seller breaches any warranty, then MMA reserves the right to cancel this Order and place the Order elsewhere charging Seller for any difference in price, and/or to return in whole or in part at Seller's expense and risk any delivery already made, paying only for the part retained. MMA may also make any claim for damages including manufacturing costs and loss of profits or other special damages incurred by MMA. Such rights shall be in addition to any other remedies provided by law.

b. MMA may cancel this Order for its convenience, in whole or in part by written or electronic notice at any time. If this Order is cancelled for convenience, any claim of Seller shall be settled on the basis of reasonable costs it has incurred in the performance of this Order.

15. Partial Acceptance: Acceptance of all or any part of the goods shall not be deemed a waiver of MMA's rights. Partial acceptance shall not relieve Seller of its obligation to furnish all, or the remainder of, the goods strictly in accordance with the terms hereof.

16. Liens: Title to the goods shall pass to MMA free and clear of all liens and encumbrances. Seller agrees to hold MMA's property free from liens and charges arising from any work performed on MMA's property and to give MMA prompt notice of any such prospective liens. Seller further agrees to indemnify MMA for all expenses, damages and costs connected with the satisfaction of such liens.

17. Providing Equipment: Seller shall provide all tools, equipment and material necessary to perform any services and shall direct all individuals acting for Seller or otherwise under its control not to borrow or otherwise use any tools, equipment or materials of the MMA; provided that any tools, equipment and material of the Seller shall not be stored at the premises of the MMA unless the MMA otherwise agrees. Seller waives, to the fullest extent permitted by law, any rights or claims it or any of its employees, subcontractors and sub-subcontractors of any tier or other persons acting on its behalf or at its direction may have against the MMA or the MMA’s property resulting in any way, wholly or partially, from the use of MMA’s tools, equipment or material.

18. Assignment: Seller may not delegate any duties nor assign any rights or claims under this Order or for breach hereof, without MMA's prior written consent. Any such attempt to delegate or assign shall be void.

19. Advertising: Seller may not make any use of MMA name or trademarks, including for advertising or promotional purposes. Seller shall not advertise or publish the fact that MMA has placed this Order without MMA's prior written consent except as may be necessary to comply with a proper request for information from an authorized representative of any governmental unit or agency.

20. Confidentiality: Seller and its employees, agents and subcontractors will hold in confidence and not disclose, distribute, sell, copy, share or otherwise use MMA'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, members, research, development, plans, business or financial affairs, property, records, processes, techniques, security procedures, or equipment of MMA or financial or personally identifiable information of any individual. Upon completion of its performance under or termination of this Purchase Order, Seller will return to MMA all Confidential Information, and any copies thereof.

21. Ownership: The Services and any customized or commissioned work product shall be "work made for hire" as defined in the U.S. copyright laws and shall be owned exclusively by MMA. In the event that such Services or work product are deemed not to be work made for hire, Seller hereby assigns copyright to the MMA and the MMA may use, modify, or refrain from using the work at its discretion. For pre-existing work product, Seller hereby grants to MMA a perpetual, non-exclusive, royalty-free license to use any work product, including the right to maintain and make modifications thereto, in connection with the final product of the work performed under this Order.

22. 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 seven (7) years after final payment, or longer if required by law. Authorized representatives of MMA 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 Order.

23. Changes: MMA shall have the right to make at any time by a written notice any changes as to packing, testing, specifications, designs, destinations and delivery schedules.Seller shall immediately notify MMA of any increases or decreases in costs caused by such changes and an equitable adjustment in prices or other terms hereof shall be agreed upon.

24. Controlling Provisions: These terms and conditions shall supersede any provisions, terms and conditions contained in any confirmation order or other writing Seller may give or receive. The rights of the parties shall be governed exclusively by the provisions, terms, and conditions hereof unless otherwise specified in the Master Services Agreement entered into between Seller and MMA, if any. The parties agree that provisions, terms, and conditions of the Master Services Agreement control in the event of any differences.

25. Modification: No modification or termination nor any claimed waiver of any of the terms and conditions hereof shall be binding unless in writing and signed by the party against whom such modification, termination or waiver is sought to be enforced.

26. Force Majeure: This Order is subject to the doctrine of force majeure.

27. Applicable Law: This Order shall be governed by and construed according to the laws of the State of New York. Any controversy arising from this Order shall be resolved in the courts located in New York, New York, USA.