APS General Terms & Conditions

Goods/Services to be provided: The vendor shall provide Good/Services as requested by APS and documented on approved purchase order.
Term: The term of an Agreement is a fixed or limited period of time, not to exceed a total of designated years set forth by APS.
Definitions: Definition of Terminology: This section contains definitions that are used throughout the procurement document, including appropriate abbreviations.
- “Agreement” shall mean the binding contract between APS and Contractor, Vendor, Bidder, Seller etc.
- “Contract” shall mean an agreement for the procurement of items of tangible personal property or services.
- “Contractor” shall mean the Vendor, Bidder, Offeror, Seller, etc
- “Desirable” the terms “may”, “can”, “should”, or “prefers” identify a desirable or discretionary item or factor.
- “District” shall mean Albuquerque Public Schools (APS)
- “Force Majeure” shall mean an occurrence that is beyond the control of the party affected and occurs without its fault or negligence.
- “Mandatory” the terms “must”, “shall”, “will”, “is required”, or “are required”, identify a mandatory item or factor.
- “Offer” – the term means “proposal”, “solution”, “quote”, etc. submitted to APS
- “Professional Service Agreement” shall mean an Agreement between Vendor and APS which is utilized for contracting for professional development/professional services; when a vendor provided Agreement or Contract will not be considered.
- “Purchase Order” shall mean the document, which directs a Vendor to deliver items of tangible personal property or services and acts as an agreement and/or contract.
- “Vendor” shall mean but is not limited to Contractor, Subcontractor, Seller, Bidder, Offeror etc.
No Parol Evidence: An Agreement is intended by the parties as a final and complete expression of their Agreement. No course of prior dealings between the parties and no usage of the trade shall supplement any terms.
Amendment: A purchase order may be amended by mutual agreement of the APS Purchasing Agent or his/her designee and the Vendor upon written notice by either party to the other. An amendment shall not affect any outstanding orders issued prior to the effective date of the amendment as mutually agreed upon, and as published by the APS Purchasing Agent or his/her designee.
Discounts: APS will take advantage of prompt payment discounts whenever possible. Any discount period will not begin until the materials, supplies or services have been received and accepted and a correct invoice submitted for payment. If testing is required, discount period will not begin until such tests are satisfactorily completed.
Payment: Any invoice payment made shall be subject to APS’s terms and conditions (NET 30)
Invoicing: The Vendor shall be paid for services rendered satisfactorily at the submitted rate submitted in Vendor’s offer. Vendor shall provide detailed invoices to APS. In the event that APS disputes an invoice, APS shall notify the Vendor of the dispute and shall promptly pay the non-disputed portions of the invoice. Any invoice received and payment made shall be subject to APS’s terms and conditions unless specifically waived by APS in a separate written document.
Invoicing Procedures: Itemized invoices, MUST clearly reference the appropriate Purchase Order (PO) number, description of goods or services, correct quantities with matching unit price and extended totals. Invoices shall be rendered for complete orders. All invoice shall be submitted to APS Accounts Payable:
- P.O. Box 25704
- Albuquerque, NM, 87125
- Via email to (accounts.payable@aps.edu)
Non-appropriation: APS’s obligation to make payment under the terms of an APS Agreement is contingent upon its appropriation of sufficient funds to make those payments. If APS does not appropriate funds for the continuation of the procurement, the procurement will terminate upon written notice of that effect to the Principal. APS determination that sufficient funds have not been appropriated is firm, binding and not subject to review.
Taxes: APS holds a Class 9 Nontaxable Transaction Certificate and is exempt from payment of taxes on tangible personal property. A NTTC will be issued upon request.
Assignments: The Vendor shall not assign, nor delegate specific duties as part of the purchase order, nor transfer any interest nor assign any claims for money due or to become due under the purchase order without the written consent of APS.
Independent Contractor: The Vendor is deemed an Independent Contractor performing services for APS. The Vendor shall not accrue leave, retirement, insurance, or any other benefits afforded to employees of APS as a result of a procurement.
Subcontracts: The foregoing requirements for Vendor Personnel, Subcontracting, and Audit shall be inserted into all subcontracts from the Prime Contractor to the Subcontractor.
Request(s) not defined in scope of work: Vendor shall be held responsible to NOT fill requests which are clearly beyond the defined scope of a purchase order. Should such requests occur, Vendor has the responsibility of calling such violations to the attention of the APS Procurement Officer.
Penalties: The New Mexico Procurement Code (NMSA 1978) imposes civil and criminal penalties for its violation. In addition, New Mexico criminal statutes impose penalties for bribes, gratuities and kickbacks.
Contingency Fees: Vendor warrants that no person or selling agency has been employed or retained to solicit or secure an Agreement with APS upon an understanding for a commission, percentage, brokerage or contingent fee excepting bonafide employees or bonafide established commercial or selling agencies maintained or utilized by Vendor for the purpose of securing business. For violation or breach of a warranty, APS shall have the right to annul an Agreement without liability or, at its discretion, to deduct from the Agreement, price or consideration or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee.
Indemnification: Vendor assumes the entire responsibility and liability for losses, expenses, damages, demands and claims in connection with or arising out of any actual or alleged personal injury (including death) and/or damage or destruction to property sustained or alleged to have been sustained in connection with or arising out of the performances of the work by Vendor, its Agents, Employees, Subcontractors or Consultants, except to the extent of liability arising out of the negligent performance of the work or by willful misconduct of APS. Vendor shall indemnify and hold harmless APS, its Officers, Agents, and Employees and Staff from any and all liability for such losses, expenses, damages, demands, and claims and shall defend any suit or action brought against any or all of them based on any actual or alleged personal injury or damage and shall pay any damage costs and expenses including Attorneys' fees and costs, in connection with or resulting from such suit or action.

Insurance: A successful Offeror shall purchase and maintain statutory limits of Worker's Compensation, Public Liability and Automobile Liability Insurance approved by APS at the time of contract award. Albuquerque Public Schools shall be included as a Loss Payee and/or additional insured. Public Liability and Automobile Liability insurance shall include at least the following coverage:

Public Liability and Automobile Liability Insurance Requirements
Type of Insurance	Coverage
General Liability Insurance – Per Occurrence General Aggregate - $2,000,000 Product/Completed Operations Aggregate - $1,000,000	$1,000,000
Professional Liability Insurance (E&O)-per occurrence Professional Aggregate - $2,000,000	$2,000,000
Bodily injury, per occurrence	$1,000,000
Medical and medically-related expenses	$5,000
Vehicle bodily injury, each occurrence, excluding medical and medically related expenses	$750,000
Property Damage, per occurrence	$1,000,000
Worker's Compensation and Employers Liability	$1,000,000

Vendor shall furnish Owner with certificates of insurance with the contract documents and prior to the commencement of work.

NOTE: Certificate holder shall be:
Board of Education
Albuquerque Public Schools

Certificate of Insurance forwarded to:
Albuquerque Public Schools —
Procurement Department
P.O. Box 25704
Albuquerque, New Mexico 87125-0704

Patent and copyright indemnity: Vendor shall pay all royalty and license fees relating to deliverables and other items covered in any Procurement document. In the event any third party shall claim that the reproduction, manufacture, use or sale of goods or items covered hereby infringes any copyright, trademark, patent, or other intellectual property rights, Vendor shall indemnify and hold APS harmless from any cost, expense, damage, or loss resulting therefrom.
Title: Title to the materials and supplies passed shall pass to APS at the F.O.B. Destination specified subject to the right of APS to reject upon inspection. For any exception to the delivery date specified, Vendor shall give prior notification and obtain approval thereto from APS's Purchasing Department. Order is subject to termination for failure to make timely delivery.
FOB: Unless stated otherwise, the price for goods is FOB: Destination (APS’s designated address).
Delivery: The goods shall be delivered free of the rightful claim of any third person, any security interest or other lien. Unless otherwise agreed all goods called for in a Bid/Agreement shall be tendered in a single delivery and payment is due only upon such delivery (NET 30). For any exception to the delivery date specified, Vendor shall give prior notification and obtain approval thereto from APS's Purchasing Department. Order is subject to termination for failure to make timely delivery.
Delays in Delivery: Time is of the essence and a purchase may be subject to termination for failure to deliver on time, unless delay was caused negligently or willfully by APS. If delay in delivery is foreseen, Vendor must notify the APS Requesting Department of late delivery, cause of late delivery and remedy for late delivery.
Acceptance: Acceptance of delivery of Goods/Services shall not be considered acceptance of the goods/services furnished. Acceptance occurs when the APS Requesting Department, after a reasonable opportunity to inspect/test the goods/services, signifies to the Vendor that are goods/services are conforming and fails to make an effective rejection.
Revocation of Acceptance: The APS Requesting Department can revoke acceptance of goods when it is discovered, in a reasonable time, that the Vendor’s nonconforming goods substantially impair the value of the goods.
Packing: APS Purchase Order Number, and the Vendor's name, User's name and location shall be shown on each packing and delivery ticket, package, bill and other correspondence in connection with the shipments.
Variation in Quantity: No variation in the quantity of any item called for by an order will be accepted unless such variation has been caused by conditions of loading, shipping, packing or allowances in manufacturing process and then only to the extent, if any, specified in an Agreement.
Vendor’s Right to Cure a Nonconforming Delivery of Goods: The Vendor, upon notice of revocation of acceptance, shall correct without any charge or costs against APS, and MUST deliver conforming goods in a reasonable time.
Warranties: Vendor warrants the materials, supplies or services furnished to be exactly as specified in an order, free from defects in Vendor's design, labor, materials, and manufacture, and to be in compliance with any drawings or specifications incorporated herein and with any samples furnished by Vendor. All applicable UCC warranties, express or implied are incorporated herein.
Inspection: The materials, supplies or services furnished shall be exactly as specified in an Agreement, free from defects in Vendor’s design, workmanship and materials, and, except as otherwise provided in an Agreement, shall be subject to inspection and test by APS at all times and places. If, prior to final acceptance, any materials, supplies or services are found to be defective or not as specified, APS may reject them, require Vendor to correct them without charge, or require delivery of such materials, supplies, or services at a reduction in price which is equitable under the circumstances. If Vendor is unable or refuses to correct such defects within a time deemed reasonable by APS, APS may terminate the order in whole or in part. Vendor shall bear all risks as to rejected materials, supplies and services and, in addition to any other costs for which Vendor may become liable to APS under other provisions of an Agreement, shall reimburse APS for all transportation costs, other related costs incurred, or payments to Vendor in accordance with the terms of an Agreement for unaccepted materials, supplies and services. Notwithstanding final acceptance and payment, Vendor shall be liable for latent defects, fraud or such gross mistakes as amount to fraud. Any test programs and procedures required by the specifications are in addition to, and do not limit, APS's rights provided in this Paragraph.
Inspection of Plant: APS, an Agency, or Entity that is a party to an Agreement may inspect, at any reasonable time during Vendor’s regular business hours and upon prior written notice to the Vendor, the Vendor’s plant or place of business, or any Subcontractor’s plant or place of business, which is related to the performance of an Agreement.
Audit: APS reserves the right to audit the Vendor’s records associated with an Agreement at any time during an Agreement Term and for a period of up to three (3) years following the expiration or termination of an agreement. Such audit may be conducted by APS personnel or a third party under contract with the APS. APS shall give the Vendor reasonable notice prior to the conduct of any audit and upon receiving the notice from APS the Vendor agrees to fully cooperate with the auditors. If Vendor subcontracts any portion of its obligation to another party, Vendor shall guarantee APS’s access to books and records of such party for Audit purposes during an Agreement Term and for a period of up to three (3) years following the expiration or termination of an agreement.
Changes: APS may make changes within the general scope by giving notice to Vendor and subsequently confirming such changes in writing. If such changes affect the cost of, or the time required for performance of an Agreement, an appropriate equitable adjustment shall be made. No change by Vendor shall be recognized without written approval of APS. Any claim of Vendor for an adjustment under this Paragraph must be made in writing within thirty (30) days from the date of receipt by Vendor of notification of such change unless APS waives the condition. Nothing in this Paragraph shall excuse Vendor from proceeding with performance of an Agreement as changed.
Severability: If any provision of an Agreement is found invalid or unenforceable, the remainder of the Agreement will be enforced to the maximum extent permissible and the legality and enforceability of the other provisions of the Agreement will not be affected.
Labor Disputes: Vendor shall give prompt notice to APS of any actual or potential labor dispute which delays or may delay timely performance of an Agreement.
Affirmative Action: Vendor shall not maintain or provide racially segregated facilities for employees at any establishment under his/her control. Vendor agrees to adhere to the principle set forth in Executive Order 11246 and 11375, and to undertake specifically to maintain employment policies and practices that affirmatively promote equality of opportunity.
Nondiscrimination: Vendor doing business with the Albuquerque Public Schools must be in compliance with the Federal Civil Rights Act of 1964 and Title VII of the Act (rev. 1979) and the Americans with Disabilities Act of 1990 (public law 101-336).
Termination by APS:
1. For Cause:
  - The occurrence of either one of the following events will justify termination for cause:
    - Vendor’s persistent failure to perform the work in accordance with an Agreement documents (including but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment).
    - Vendor’s violation in any substantial way of any provisions of an Agreement.
  - If either one of the events identified above occurs, APS may, after giving Vendor (and the surety, if any) ten (10) days written notice, terminate the service of Vendor, exclude Vendor from site, and take possession of the work. Vendor shall be paid for project costs incurred up to the date of termination but shall not be paid for loss of profits, expectation or reliance damages resulting from such termination.
  - Where Vendor’s services have been so terminated by APS, the termination will not affect any rights or remedies of APS against Vendor then existing or which may thereafter accrue. Any retention or payment of moneys due the Vendor by APS will not release the Vendor from liability.
2. For Convenience:
  - Upon ten (10) days written notice to Vendor, APS may without cause and without prejudice to any other right or remedy of APS, elect to terminate an Agreement.
  - In such case, Vendor shall be paid (without duplication of any items):
    - For completed and acceptable work executed in accordance with the Agreement documents prior to the effective date of termination,
    - For expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials or equipment as required by the contract document in connection with uncompleted work.
  - Vendor shall not be paid on account of loss of anticipated/expected profits or revenue or other economic loss arising out of or resulting from such termination.
Force Majeure: Except for payment of sums due, neither party shall be liable to the other nor deemed in default under an Agreement if and to the extent that such party’s performance of an Agreement is prevented by reason of Force Majeure. The term “force majeure” means an occurrence that is beyond the control of the party affected and occurs without its fault or negligence. Without limiting the foregoing, force majeure includes acts of God; acts of the public enemy; war; riots; strikes; mobilization; labor disputes; civil disorders; fire; flood; lockouts; injections-intervention-acts; or failures or refusals to act by government authority; and other similar occurrences beyond the control of the party declaring force majeure which such party is unable to prevent by exercising reasonable diligence.
- Force Majeure shall NOT include the following occurrences:
  - Late delivery of equipment or materials caused by congestion at a Manufacturer’s plant or elsewhere, or an oversold condition of the market; or
  - Late performance by a Subcontractor unless the delay arises out of a Force Majeure occurrence in accordance with this Force Majeure term and condition; or
  - Inability of either the Vendor or any Subcontractor to acquire or maintain any required insurance, bonds, licenses, or permits.
- If either party is delayed at any time in the progress of the work by Force Majeure, the delayed party shall notify the other party in writing of such delay, as soon as is practicable and no later than the following working day, of the commencement thereof and shall specify the causes of such delay in such notice. Such notice shall be delivered or mailed certified-return receipt requested, and shall make a specific reference to this Paragraph, thereby invoking its provisions. The delayed party shall cause such delay to cease as soon as practicable and shall notify the other party in writing when it has done so. The time of completion shall be extended by Agreement Amendment for a period of time equal to the time that results or effects of such delay prevent the delayed party from performing in accordance with an Agreement.
- Any delay or failure in performance by either party hereto shall not constitute default hereunder or give rise to any claim for damages or loss of anticipated profits if, and that such delay or failure is caused by force majeure.
Non-Collision: In accepting this order the vendor certifies he/she has not, either directly or indirectly, entered into action in restraint Offeree competitive bidding in connection with an offer submitted to the APS Purchasing Agent or his/her designee.
Non-Disclosure: The vendor shall not disclose any information relating to students, and employees of APS other than such information that may be authorized by the individual student or employee. The vendor will ensure compliance with HIPPA and FERPA regulations as applicable. Vendor agrees to indemnify and hold harmless APS from any damages, claims, liabilities, and costs including reasonable attorney fees and costs in the event any unauthorized release of such information occurs.
Conflict of Interest: Vendor certifies that no relationship exists between the Vendor and APS that interferes with fair competition or is a conflict of interest; and no relationship exists between such propose and another person or firm that constitutes a conflict of interest that is adverse to APS.
Applicable Laws: If an Agreement results from a Federal Grant or funding, applicable clauses of the Uniform Guidance Procurement Standards shall be incorporated into the Procurement documents by reference. Any provision required to be included in a contract of this type by any applicable and valid Executive Order, federal, state or local law, ordinance, rule or regulation also shall be deemed to be incorporated herein. Any contract or litigation resulting from acceptance of this purchase order will be construed according to the laws of the State of New Mexico unless otherwise stated
Governing Law: Purchase Orders agreements shall be governed by the laws of the State of New Mexico.
Dispute Resolution: In the event the Parties do not agree to mediate the dispute or unable to resolve the dispute through mediation, then the dispute shall be resolved by binding arbitration. Such arbitration shall be governed by the New Mexico Uniform Arbitration Act, NMSA 44-7A-1, et seq. as amended.

This page was last updated on: February 4, 2014.