Vendor Authorization terms and conditions

1. By submitting the Vendor Authorization, the person or entity on whose behalf it is executed, and its parent, subsidiary, and affiliated entities (whether direct or indirect), for itself and its agents, contractors and subcontractors at any tier, invitees, laborers, licensees, materialmen, suppliers, surveyors, and visitors, and its and their successors and assigns (collectively hereinafter the “Vendor”) expressly accept and agree that the terms herein (hereinafter the “Terms”) shall apply in exchange for the agreement of Clean Water of New York, Inc., and its parent, subsidiary, and affiliated entities (hereinafter “CWOFNY”) to grant Vendor access or use of CWOFNY’s services, facilities, or property, including the vessels and property of CWOFNY’s customers or third-parties while at or about CWOFNY’s facilities or while in CWOFNY’s care, custody, or control. The Vendor acknowledges that its acceptance and agreement of these Terms is an express condition precedent to the acquiescence of CWOFNY.
2. CWOFNY’s acceptance of any agreement with the Vendor, including the application for Vendor Authorization, and any and all other correspondence, agreements, forms, proposals, or otherwise, including modifications or supplements thereto, is expressly made conditional upon the Vendor’s acceptance of all of these Terms.
3. CWOFNY objects to any additional or different terms and conditions, whether contained in the Vendor’s correspondence, agreements, forms, proposals, or otherwise. If Vendor’s correspondence, agreements, forms, proposals, or other documents contain terms or conditions contrary to or in addition to these Terms, then even in the absence of objection by CWOFNY, access or use of CWOFNY’s services, facilities, or property:  (i) is not an acceptance of Vendor’s terms or conditions; (ii) will not be construed as assent to such contrary or additional terms and conditions; (iii) shall not establish a course of dealing or course of performance incorporating such contrary or additional terms and conditions; and (iv) will not constitute a waiver by CWOFNY of any of these Terms.
4. Vendor’s acceptance of these Terms will be made by the earlier of: (i) CWOFNY’s receipt of the application for Vendor Authorization or written assent from the Vendor; or (ii) Vendor’s access or use of CWOFNY’s services, facilities, or property.
5. These Terms cannot be varied except by means of a further written agreement executed by the parties and which explicitly references these Terms by its title.
6. In the event of a conflict between these Terms and any other document containing terms and conditions arising out of or relating to the parties’ relationship, including any correspondence, agreements, forms, proposals, or other documents, these Terms shall be paramount and control.
7. At anytime and at CWOFNY’s sole and exclusive discretion, it may revoke Vendor’s access and use of CWOFNY’s services, facilities, or property.
8. Vendor will comply with all relevant local, national, and international health and safety regulations and standards, including those set by the Occupational Safety and Health Administration or other applicable bodies. Vendor agrees to, and warrants that it will comply with, CWOFNY’s safety protocols (whether written or verbal), including but not limited to adhering to site-specific safety guidelines, protocols for working in confined spaces, and wearing appropriate personal protective equipment.  Vendor will advise CWOFNY daily of Vendor’s intended access or use of CWOFNY’s services, facilities, or property prior thereto. 
9. Vendor accepts and agrees to indemnify, defend, and hold harmless CWOFNY from any and all causes of action, claims, damages, liabilities, losses, suits, and demands by whosoever, of any nature, by reason of any matter, cause, or thing whatsoever arising out or in connection with (i) these Terms, (ii) the parties’ relationship, (iii) CWOFNY’s acts, omissions, services, facilities, or property, (iv) Vendor’s acts or omissions including those of its employees and contractors at any tier, or (v) Vendor’s customers and their vessels, whether caused by (a) CWOFNY, including where caused solely or exclusively by CWOFNY (except to the extent caused by CWOFNY’s gross negligence or willful misconduct) or (b) any other entity or person. The foregoing duties of Vendor shall include indemnity against all costs, expenses, and liabilities incurred by CWOFNY whatsoever arising out or in connection with any such causes of action, claims, damages, liabilities, losses, suits, and demands, including CWOFNY’s investigation and defense thereof and its attorney’s fees.  Vendor acknowledges that this provision indemnifies CWOFNY for CWOFNY’s own acts or omissions, including its sole negligence.
10. It is expressly agreed that CWOFNY (and the insurers of policies it procures) shall be entitled to the indemnification afforded by these Terms to the fullest extent permitted by law, and irrespective of any collateral source afforded to CWOFNY and irrespective of whether Vendor and/or Vendor’s customers maintain the insurance required by these Terms.
11. CWOFNY shall be entitled to all of its damages, including incidental and consequential damages, for any arbitral or judicial proceeding in which CWOFNY seeks to enforce its rights or compel Vendor’s obligations under these Terms.
12. At all times while CWOFNY grants access or use of CWOFNY’s services, facilities, or property to Vendor, the Vendor shall procure and maintain in full force and effect the following insurance with the minimum limits of $1,000,000.00 per occurrence except where specified:
    
    1. Workers’ Compensation/Employers’ Liability, which shall be in compliance with the statutory requirements of the state of hire and any other jurisdiction in which CWOFNY grants access or use of CWOFNY’s services, facilities, or property Vendor;
    2. S. Longshore and Harbor Workers’ Compensation Act coverage (“USLHWCA”), which shall be in compliance with the federal requirements;
    3. Maritime Employers Liability, which shall include coverage for bodily injury, illness, occupational sickness or disease, or death, and liability under the Jones Act and general maritime law;
    4. Marine/Commercial General Liability, which shall include coverage for Vendor’s liabilities assumed pursuant to these Terms, blanket contractual liability coverage, action over/indemnity buyback coverage, and ship repairers’ legal liability coverage;
    5. Pollution, which shall include coverage for pollution/environmental liabilities for pollution emanating from or caused by Vendor or Vendor’s customer’s vessels, including liabilities arising from the continuous or sudden and accidental release or threatened release of pollutants or hazardous substances under OPA, CERCLA, the Clean Water Act or similar local, state, federal, or international laws and regulations, in an amount not less than $1,000,000 (or any statutory amount required for any vessel for which Vendor seeks this authorization, if greater) on terms and conditions available by Safe Harbor Insurance Co., or equivalent;
    6. Umbrella/Excess, which shall include excess coverage to the foregoing insurance and with a limit of liability no less than $2,000,000.00.
13. The foregoing insurance shall: (i) expressly include CWOFNY as an additional named insured and loss payee (except the Workers Compensation and USLHWCA coverages); (ii) be primary and non-contributory to any other insurance available to CWOFNY; and (iii) shall include a waiver of subrogation in favor of CWOFNY.  All claims expenses and loss payments within the deductibles and/or self-insured retentions under the foregoing insurance required by these Terms shall be borne exclusively by the Vendor and not CWOFNY. 
14. Contemporaneously with its submission of the application for Vendor Authorization, Vendor shall provide to CWOFNY certificates of insurance confirming the required coverages and limits. Vendor’s failure to do so shall not be deemed a waiver by CWOFNY of any of the insurance requirements or other Terms. 
15. Any and all disputes between the parties, including without limitation all claims or controversies arising out of or relating in any way to the entirety of the parties’ relationship or these Terms or the breach, enforcement, interpretation, termination, or validity thereof, or the parties’ acts or omissions arising out of or relating in anyway herewith, whether contractual, extra-contractual, statutory, tortious, or otherwise, based in admiralty, equity, law, or otherwise (hereinafter “Disputes”), shall be governed by and construed in accordance with the federal admiralty and maritime laws of the United States and, in the absence thereof, the laws of the State of New York.
16. All Disputes, including without limitation the determination of the arbitrability, applicability, or scope of this provision to arbitrate, shall be exclusively and finally determined by arbitration in the State of New York. The arbitration shall be administered by the Society of Maritime Arbitrators, Inc. pursuant to its rules in force when such proceeding is commenced.  The arbitrators shall be members of the Society of Maritime Arbitrators, Inc.  The arbitration award shall be final and binding on the parties.  Judgment on the award may be entered in any court in the world having jurisdiction.  In agreeing to this arbitration provision, the parties acknowledge and mutually agree that they are waiving any right they may have to a court or jury trial.  This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.