Purchase Order Standard Terms and Conditions

The Fresno County Superintendent of School’s (“FCSS”) purchase order is subject to the following terms and conditions: THESE TERMS AND CONDITIONS ARE SUBORDINATE TO TERMS AND CONDITIONS THAT MAY EXIST UNDER A PREVIOUSLY EXECUTED CONTRACT.   THE TERMS OF THE EXCUTED CONTRACT SHALL PREVAIL IN THE EVENT OF A CONFLICT.

1. ACCEPTANCE OF ORDER: This purchase order (hereinafter “Order”) is FCSS’ offer to Contractor, Vendor, or Supplier (hereinafter “Seller”). Acceptance is strictly limited to its terms. FCSS shall not be bound by and specifically objects to any term or condition whatsoever that is different from or in addition to the terms and conditions of this Order, whether or not such term or condition will materially alter this Order. Seller's commencement of performance or acceptance of this Order in any manner shall conclusively evidence agreement to this Order as written.  Further, Seller shall be responsible for ensuring that this Order is approved and signed by the appropriate FCSS personnel.

2. PACKAGING AND EXTRAS: No charges will be allowed for transportation, packaging, packing, or returnable containers agreed to in this Order. Damage to any item(s) resulting from improper packaging will be charged to Seller. Seller shall be responsible for submitting the appropriate packing slips and receipts in accordance with FCSS policy.  FCSS shall not be responsible for goods outside of the scope of this Order.

3. SPECIFICATIONS: All item(s) ordered to specifications shall comply with such specifications current as of the date of this Order unless otherwise specified by FCSS.  Seller shall maintain a quality level of zero defects on all item(s) shipped to FCSS

4. CHANGES: FCSS may at any time, by written notice, make changes in the specifications, designs or drawings, samples or other description to which the Item(s) are to conform, in methods of shipment and packaging, or place of delivery. Nothing in this clause shall excuse the Seller from proceeding without delay to perform this Order as changed. Seller shall make no substitutions or changes to the form, fit, or function of the item(s) furnished to FCSS by Seller hereunder without prior written notice and approval in writing from FCSS.  The review or approval by FCSS of any work hereunder or of any designs, drawings, specifications or other documents prepared hereunder shall not relieve Seller of any of its obligations under this Order, nor excuse or constitute a waiver of any defects or nonconformity in any item(s) furnished under this Order, nor change, modify or otherwise affect any of the provisions of this Order, including, but not limited to, the prices and delivery schedules contained herein

5. INVOICES: Before Seller may receive any payment under this Order, Seller shall submit an itemized invoice that list this Order number. Each person submitting and/or signing an invoice on behalf of Seller declares under penalty of perjury under California laws, and certifies and attests that: (A) he/she has thoroughly reviewed the claim for payment and know its content; (B) the invoice and supporting information are true, accurate, and complete, and reflect amounts due and services that Seller has completed in accordance with this Order and the correct amount for those services; (C) Seller has complied and is in compliance with all obligations required of Seller under this Order; and (D) he/she is familiar with Penal Code section 72 pertaining to false claims, and knows and understands that submission and/or certification of a false claim may lead to fines, imprisonment, and/or other legal consequences.

6. PAYMENT: All invoices for item(s) delivered and service(s) performed shall be addressed to the attention of Internal Business Services – Accounts Payable, Office of Fresno County Superintendent of Schools, 1111 Van Ness Avenue, Fresno, CA 93721.

7. QUALIFICATION: Seller represents and shall ensure that it and all persons whom it employs or retains to perform this Order have the necessary training, skill, and experience and are qualified to so perform. Upon FCSS’ request, Seller shall dismiss any of Seller’s employees, suppliers, or materialmen whom FCSS determined are not skilled for the task assigned.

8. WARRANTY: SELLER SHALL WARRANT THAT ITEMS SUPPLIED BY SELLER ARE NEW UNLESS SPECIFICALLY APPROVED BY FCSS IN WRITING. ITEMS SHALL NOT BE SURPLUS, RECONDITIONED, RECOVERED OR REMANUFACTURED UNLESS APPROVED BY FCSS IN WRITING.  Any other specific product or service warranty shall be expressly included in the manufacturer’s standard publications, proposal or quotations.

9. TERMINATION: FCSS shall have the right to terminate this Order or any part thereof at any time following 30 days’ written notice: In case of termination by FCSS of all or any part of this Order and/or any purchase order(s) without cause, Seller shall submit all claims for amount due from FCSS within thirty (30) days after the effective date of cancellation/termination. Seller shall maintain complete and accurate records to support Seller's claimed costs.

10. FERPA (AS APPLICABLE): If Seller will have access to student records, Seller agrees to comply with the Family Educational Rights and Privacy Act of 1974, Education Code 49060 et. seq., Code of Regulations Title 5 Section 430 et. seq., and all requirements imposed by or pursuant to regulation of the Department of Education and FCSS (including but not limited to Administrative Regulation and Procedures No. 6525 and 6527) to the end that the rights and privacy of the students enrolled in the FCSS and of their parents are not violated or invaded. This assurance is given to obtain access to individual student records for the purpose of using said data to fulfill contractual obligations with FCSS.

11. FORCE MAJEURE: The Seller shall be excused from late and non-delivery of goods hereunder during the time and to the extent that it is prevented from obtaining, delivering or performing in the customary manner by act of God such as epidemics, pandemics, tornadoes, lightning, earthquakes, hurricanes, floods, or other natural disasters, when satisfactory evidence thereof has been presented to FCSS providing it is satisfactorily established that the late or non-delivery is not due to the fault or negligence of the Party not performing.

12. ASSIGNMENT: FCSS may assign in whole or in part any of its rights and obligations under this Order without the prior consent of the other Party. Seller shall not assign in whole or in part or subcontract in whole or substantially in whole any part of its rights or obligations under this Order without the express written consent of FCSS. The terms and conditions of this Order shall bind any permitted successors and assigns of either Party.

13. INDEPENDENT CONTRACTOR. Seller is an independent contractor, and it and its officers, employees, and agents are not, and shall not represent themselves as, officers, employees, or agents of FCSS. Seller represents that it is a business service provider and the Services are provided as a bona-fide business-to-business contracting relationship consistent with Labor Code section 2776. This Order does not and shall not be construed to create an employment or agency relationship, partnership, or joint venture between the Parties.

14. COMPLIANCE WITH LAWS: Seller warrants that it will comply with all federal, state, and local laws, including, but not limited to, any statute, rule, regulation, judgment, decree, order or permit applicable to its performance under this Order including any employment, health or safety agency regulations.

15. FEDERAL GRANT FUNDS. The provisions of this paragraph apply if this Order is paid, in part or in whole, with federal grant funds. Seller shall comply with federal laws, regulations, and requirements applicable to such federal grant funds. Seller represents that it is not debarred, suspended, or otherwise excluded or ineligible to be awarded this Order.  The applicable federal laws, regulations, and requirements, include but not be limited to: (A) non-discrimination based on race, color, national origin, sex, disability, or age; (B) 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); (C) Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act; (D) the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352) and FCSS’ Conflict of Interest Policies; (E) Conflict Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements (37 CFR Part 401); (F) Surveillance Equipment Restrictions (2 CFR Section 200.216); (G) Domestic Preferences (2 CFR Section 200.322); Procurement of Recovered Materials (2 CFR Section 200.323); (H) Small and Minority Business Preferences (2 CFR Section 200.321); (I) Federal Occupational Safety and Health Act (34 CFR 75.609); and (J) and Energy Conservation Compliance (34 CFR 75.616). Upon FCSS’ request, Seller shall cooperate with and provide Seller with documents and information relating to this Order that are necessary to comply with applicable federal laws, regulations, and requirements.

16. APPLICABLE LAW: This Order shall be governed by, construed and enforced in accordance with the laws of the State of California.

17. REMEDIES,NON-WAIVERAND INVALIDITY: Any and all failures, delays, or forbearances of either Party in insisting upon or enforcing at any time or times any of the terms and conditions of this Order, or to exercise any rights or remedies under this Order, shall not be construed as a waiver or relinquishment of any such terms and conditions, rights or remedies in those or any other instances; rather, the same shall be and remain in full force and effect. The invalidity in whole or in part of any term and condition contained herein shall not affect the validity of any other term and condition. The rights and remedies provided FCSS pursuant to this Agreement shall be cumulative and in addition to any other rights and remedies provided by law or equity. A waiver of a breach of any term and condition hereof shall not constitute a waiver of any other breach.

18. WAIVER: This Order shall not be amended or modified, nor shall any waiver of any right hereunder be effective unless set forth in a document executed by duly authorized representatives of the Parties. The failure to exercise any right under this Order shall not be deemed to be a waiver of such right, and shall not affect the right to enforce each and every right hereof. The waiver of any breach of any term, provision, covenant or condition herein contained shall not be deemed to be a waiver of any: a) subsequent breach of such term, provision, covenant or condition; or b) other term, provision, covenant, or condition.

19. SEVERABILITY: If any term or condition of this Order is held invalid or unenforceable for any reason, the remaining provisions of this Order shall continue in full force and effect as if this Order had been executed with the invalid portion eliminated, provided the effectiveness of the remaining portions of this Order will not defeat the overall intent of the Parties. In such a situation, the Parties agree, to the extent legal and possible, to incorporate a replacement provision to accomplish the originally intended effect.

20. ENTIRE AGREEMENT: This Order is intended by the FCSS and Seller as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. No Amendment or change of any kind shall be binding upon FCSS unless in writing and signed by an authorized representative of FCSS. This Order will be subordinate to the purchasing terms and conditions expressly stated in an agreement if one has been duly signed by FCSS and the Seller.

THE FOLLOWING PROVISIONS ARE REQUIRED IN PURCHASE ORDERS FOR CONTRACTING THAT WILL BE PERFORMED ON SCHOOL SITES AND/OR AROUND CHILDREN.

21. FINGERPRINT CLEARANCE: Seller shall ensure that any employee who interacts with pupils, outside of their immediate supervision and control of the pupil’s parent or guardian or school employee has a valid criminal records summary as described in Education Code 44237.

22. TUBERCULOSIS EXAMINATION: Seller shall ensure that if there is to be contact with employees working with FCSS, a proper tuberculosis (TB) certificate of clearance will be provided to FCSS prior to commencing initial employment. Seller will ensure that subcontractors will not place any person at a school without a valid TB certificate on file showing the employee was examined and found to be free from active tuberculosis, as defined in Education Code Section 49406.1 (a).

23. PRIVACY OF PUPIL RECORDS: The following provisions are required by Education Code 49073.1 and/or applicable federal laws:

    1. Any Pupil Records, as the term is defined in Section 49073.1, that may be provided to Seller from FCSS shall continue to be the property of and under the control of FCSS, notwithstanding Seller’s right to use such Pupil Records as specifically authorized by this Order.

    2. The procedures by which a pupil may retain possession and control of their own pupil generated content are outlined as follows: To the extent applicable, a pupil may retain possession and control of his/her own pupil-generated content by requesting FCSS staff to assist in obtaining possession and control of pupil generated content.

    3. Seller shall not be allowed to use any Pupil Records for any purposes other than those required or specifically permitted by this Order.

    4. Parents or legal guardians of a pupil, or an eligible pupil, may review personally identifiable information in the pupil's records maintained by Seller and correct erroneous information by requesting Seller and/or FCSS to review and/or correct the pupil information.

    5. Seller shall take actions to ensure the security and confidentiality of Pupil Records, including, but not limited to designating and training responsible individuals on ensuring the security and confidentiality of Pupil Records, by following the applicable state and federal laws, including, but not limited to FERPA and the Children’s Online Privacy and Protection Act (“COPPA”).

    6. In the event of an unauthorized disclosure of a Pupil Record, in consultation with FCSS, Seller shall notify the parent or legal guardian of impacted pupils, or the impacted eligible pupil themselves, by providing them with written notice specifying the nature and extent of the unauthorized disclosure.  Such notice shall be provided by Seller promptly after Seller has knowledge or notice of the unauthorized disclosure.

    7. Seller certifies that Pupil Records shall not be retained by or available to Seller upon expiration of this Order.  Seller shall enforce this certification by ensuring the secure destruction of all pupil personally identifiable information by having Seller’s designated staff personally review where all Pupil Records created pursuant to this Order in the custody or under the control of Seller were located/stored during the term of this Order, and verifying to FCSS the destruction of said Pupil Records.  This personal review shall be completed not more than ninety (90) days following the expiration of this Order.

    8. Seller and FCSS shall jointly ensure compliance with FERPA consistent with Paragraph 10.

    9. Seller shall not use any personally identifiable information in Pupil Records to engage in targeted advertising.

THE FOLLOWING PROVISION is REQUIRED IN PURCHASE ORDERS FOR PUBLIC WORKS CONTRACTING:

24. PREVAILING WAGE REQUIREMENT Pursuant to the provisions of Articles 1 and 2 of Chapter 1, Part 7, Division II, of the Labor Code of the State of California (Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations), Title 8, California Code of Regulations, Chapter 8, Subchapter 3, commencing with Section 16000, for any “public works” (as that term is defined in the statues), there shall be paid to each Worker of the Seller, or any subcontractor, of any tier, engaged in the work, not less than the general prevailing wage rate, and not less than the general prevailing rate of per diem wages for holidays and overtime work, for each craft, classification or type of worker needed to execute the work contemplated under this Order regardless of any contractual relationship which may be alleged to exist between the Seller or any subcontractor, of any tier, and such worker. For purpose of compliance with prevailing wage law, the Seller shall comply with provisions applicable to an awarding body. Copies of the prevailing rate of per diem wages applicable to this Order are on file at FCSS, and shall be made available to any interested party on request; or may be found on the Internet at: http://www.dir.ca.gov/DLSR/PWD. Seller is responsible for ascertaining and complying with all current general prevailing wage rates for crafts and any rate changes that occur during the life of the contract; and shall ensure that the above requirements are included in all its contracts for activities for this Order.

Last revised: August 2023; Doc. No. 148558