Terms & Conditions

1.  Agreement. The agreement between Tilson Technology Management, Inc. (“Tilson”) and the party identified on the Purchase Order (“Supplier”) consists of the terms and conditions set forth herein (these “Terms and Conditions”), any Purchase Order, and any documents attached to or incorporated by reference into either. 

2. Services. Supplier shall perform the services described in each Purchase Order (the “Services”) issued by Tilson. Supplier will coordinate its activities with and report to the Tilson representative specified in the Purchase Order. Supplier shall devote such time as is necessary to the proper performance of the Services as promptly as possible, but no later than any date(s) set forth in an applicable Purchase Order. Supplier shall not perform any Services prior to receipt of a Purchase Order and shall only perform Services authorized by a Purchase Order.

3. Acceptance.  A Purchase Order issued by Tilson and these Terms and Conditions shall be deemed accepted and authorized by Supplier and Tilson upon the commencement of Services described therein and, except as otherwise set forth herein, shall remain in effect until all Services are complete and no Purchase Order remains outstanding.

4. Compensation.

1. The compensation to be paid by Tilson to Supplier for the Services shall be set forth in the Purchase Order. Tilson will pay Supplier for Services properly performed within the terms stated on the face of the Purchase Order from beginning from the date on which each invoice, properly prepared and submitted, is received by Tilson. All payments to Supplier for satisfactory performance of the Services shall not exceed the amounts listed on the Purchase Order without advance written approval by Tilson.
2. With respect to any construction-related Services, Supplier shall include with each request or invoice for payment, and it shall be a condition precedent to Tilson’s obligation to pay Supplier, that Supplier include duly executed releases of liens, or in the case of work partially completed, partial releases of liens, in form and substance satisfactory to Tilson, of Supplier and all subcontractors (including, without limitation, sub-subcontractors and below) and materialmen whose work and/or materials are to be paid pursuant to such request or invoice.

5. Performance.

1. Supplier warrants that the Services shall be performed by qualified individuals in a manner consistent with that level of care and skill ordinarily exercised by other reputable contractors under similar circumstances at the time the Services are performed, and in conformance with the specifications (if any) set forth on the Purchase Order. Supplier further warrants that Supplier shall have good title, free and clear of any liens, to any and all materials, supplies and deliverables provided by Supplier hereunder and such materials, supplies and deliverables shall be new, merchantable, fit for their intended purpose, free from any defects and conform to the specifications and descriptions set forth herein, if any. The foregoing warranties shall survive any inspection or acceptance of the materials, supplies, deliverables, and Services and payment therefor.
2. Supplier shall, at its expense, re-perform all Services and replace all materials, supplies and deliverables that fail to conform to the foregoing warranties. If Supplier fails to perform the Services or supply materials, supplies and deliverables in accordance with the terms hereof or fails to promptly correct or replace any defective Services, materials, supplies or deliverables after notification to Supplier and reasonable opportunity to correct, Tilson may arrange for another entity to provide the Services and/or materials, supplies and deliverables, and any increased cost incurred by Tilson in connection therewith shall be paid promptly by Supplier or deducted by Tilson from the amounts otherwise due to Supplier hereunder. Supplier shall promptly notify Tilson upon learning of any material defect, misstatement or omission in rendering any Services. Supplier shall also, provide or pass through to Tilson any manufacturer’s warranties covering any products and materials. Tilson shall not, by paying for or accepting Services, waive any of its warranty rights. These remedies shall be in addition to any other remedies provided for by law or equity. The foregoing warranties shall survive any inspection or acceptance of the materials, supplies, deliverables and Services and payment therefor by Tilson and shall run to Tilson’s successors, assigns and customers and shall not be exclusive.
3. If Supplier, through its own fault, fails to furnish Services that conform to the requirements by the agreed-upon date, then Supplier shall be liable for the incremental costs incurred by Tilson, which costs would not otherwise have been expended, to meet commitments to its customers.  The sum of any incremental costs shall appear as a credit against the applicable Purchase Order unless direct payment by Supplier to Tilson is specified by Tilson.
4. Tilson shall have the right to suspend the performance of Services in progress for a reasonable time or as required by a contractual agreement with its customer, at no additional cost to Tilson.  Supplier shall resume performance of the Services at Tilson’s direction.
5. With respect to any construction-related Services, Supplier shall at all times keep the worksite clean, and, on an ongoing basis, including at the completion of the Services, Supplier shall restore to essentially its former condition, to the satisfaction of Tilson, all aspects of the worksite and shall remove all waste and excess materials, tools, and equipment and legally dispose thereof.  All costs and expenses of any type for cleanup, restoration, and removal noted above will be borne by Supplier at no cost to Tilson.

6. No Liens.  Supplier shall pay all Suppliers (including, without limitation, sub-contractors and below) and materialmen, if any, for their Purchase and Supplier shall not allow any liens to be placed upon any property or deliverable in connection with the Services and Supplier waives all rights to make, file, or maintain a mechanic’s, construction or other lien or claim of any kind or character against any property or deliverable in connection with the Services. Tilson reserves the right to make direct payment to Suppliers or materialmen and deduct the payment from amounts due to Supplier.

7. Compliance with Laws and Tilson Safety and Environmental Requirements.

1. Supplier shall, and shall require all of its employees, subcontractors, consultants, and agents to, comply with all applicable (i) federal, state, and local laws, regulations, rules, ordinances and orders of any kind, (ii) safety, health, environmental or other administrative requirements, rules, regulations or procedures adopted by Tilson, and (iii) terms and conditions herein, of any Purchase Order, and of other contracts and agreements relating to the Services.
2. All representatives and employees of Supplier completing Services on a worksite at Tilson’s (or its client’s) location shall participate in such on-site or on-line trainings as deemed necessary by Tilson for the safe completion of Services hereunder. Notwithstanding the foregoing, no trainings or briefings offered by Tilson shall limit the responsibility of Supplier to ensure compliance with the obligations of Supplier set forth in this section.
3. Supplier represents, warrants, and certifies that all workers placed at a worksite of the Services are and will be authorized to work in the United States throughout the term of the applicable Purchase Order. Supplier understands and acknowledges that it is solely responsible for reviewing all documentation evidencing authorization to work, and that Tilson shall have the right to request copies of all such documentation to conduct an audit of Supplier’s compliance with this section upon at least twenty-four (24) hours’ notice to Supplier. Upon Tilson’s request, Supplier will participate in any employment eligibility verification programs adopted or enrolled in by Tilson.

8. Representations and Warranties

1. Supplier represents and warrants that (i) it is duly formed, validly existing and in good standing under the laws of the state of its formation, (ii) has all requisite power and authority to execute, deliver and perform its obligations under these Terms and Conditions and any applicable Purchase Order, and (iii) these Terms and Conditions and any applicable Purchase Order constitutes the legal, valid, and binding agreement of Supplier, enforceable against it in accordance with its terms.
2. Supplier represents and warrants that it is in compliance with all federal, state, and local laws, ordinances, codes, and regulations and is not infringing on or misappropriating any patent, copyright, trademark, trade secret or other intellectual property rights of any third party.

9. Confidential Information.

1. In its performance of the Services, Supplier may come into contact with or become aware of information, data, or communications of a proprietary nature to Tilson (“Confidential Information”). Supplier shall hold secret and protect the Confidential Information, not make copies of the written versions thereof and not discuss with, or disclose to, any third party the Confidential Information, without the prior written consent of Tilson. Supplier shall ensure its employees comply with these requirements. Upon termination of the Services, Supplier shall return to Tilson all Confidential Information within Supplier’s possession. These obligations of confidentiality shall survive the termination of the Services.
2. Notwithstanding the foregoing, the Confidential Information obligations herein shall not apply to information that (i) is already in the public domain, (ii) disclosed to Supplier by a third party with the right to disclose it; (iii) previously known to Supplier on a non-confidential basis, or (iv) required to be disclosed by law.

10. Permits, Licenses, Taxes. Supplier has and will maintain all licenses and permits required for the performance of the Services. Supplier shall be responsible for the payment of any taxes arising out of its performance hereunder.

11. Title to Property and Equipment. Title to any and all materials Supplier furnishes as part of the Services vests in Tilson when materials are installed or incorporated into the Services or, if earlier than installation, when delivered to the site and paid for by Tilson. Supplier shall provide all labor, tools, materials, and equipment necessary to perform the Services. However, if Supplier uses equipment or other property furnished by Tilson, Supplier shall adequately protect such property and use such property only for the performance of the Services, and title to such property shall remain with Tilson.

12. Intellectual Property. Tilson shall be the owner of all intellectual property rights in and to any and all ideas, inventions, documents, data, programs, and/or other materials developed or produced, including improvements on prior work, by Supplier in the performance of, or arising from, the Services (“Work Product”). Tilson shall be the sole and exclusive owner of all patents, copyrights, trademarks, trade secrets, and other intellectual property rights and protection in connection with any Work Product. Supplier shall transfer to Tilson all intellectual property rights to all Work Product and shall cooperate with and assist Tilson, at Tilson’s expense, in obtaining patents, copyrights, trademarks, and other intellectual property rights and protection relating to all Work Product.   Tilson shall have the right to use the Work Product for any purpose without any additional compensation to Supplier. Each copyrightable element of the Work Product shall be a “work made for hire” for purposes of U.S. copyright laws. 

13. Hazardous Materials.

1. In performing any Services, Hazardous Materials (as defined below) shall be used, transported to and/or stored on the worksite, by Supplier only if essential for furnishing Services. Any Hazardous Materials so used by Supplier, and any containers or other materials that come into contact with such Hazardous Materials, shall be handled in accordance with all applicable laws, ordinances, statutes, orders, rules and regulations of any governmental body or authority in effect from time to time.
2. “Hazardous Materials” shall mean any substance, material or waste now or hereafter classified as a contaminant or pollutant under any law, ordinance, statute, rule or regulation of any governmental body or authority.
3. Supplier shall notify Tilson of any intent to use, or transport to the worksite, any Hazardous Materials at least four (4) days before such transport or use. Supplier shall insert these provisions relating to use and handling of Hazardous Materials in all subcontracts.

14. Audit and Inspection. During, and for a period of two (2) years after the completion or termination of, any Purchase Order, Supplier shall maintain reasonable records relating to payments made on a time and materials basis and Supplier’s performance hereunder. During this time, upon reasonable notice to Supplier, Tilson shall have the right to audit and inspect, at Supplier’s place(s) of business and during normal business hours, such books and records.

15. Insurance. Supplier shall carry insurance, including worker’s compensation insurance, in form and amount consistent with prudent industry standards and acceptable to Tilson. Upon Tilson’s request, Supplier shall provide certificates of insurance naming Tilson as an additional insured and including a waiver of subrogation in favor of Tilson.

16. Termination. Tilson may terminate the Services to be performed hereunder upon 10 days prior notice. In the event of such termination, Tilson shall pay Supplier for Purchase properly performed up to the termination date.  In the event of Supplier’s bankruptcy, insolvency, or the occurrence of circumstances which lead Tilson to believe that such events are forthcoming, then Tilson may terminate the Services immediately upon notice.

17. Indemnification.

1. Supplier shall indemnify, hold harmless and defend Tilson, its affiliates, parent and subsidiary companies, and its and their respective directors, officers, partners, members, employees, agents, successors and assigns (collectively, the “Indemnified Parties” and each an “Indemnified Party”) from and against any and all claims, actions, suits, damages, liabilities, costs and/or expenses (including, without limitation, reasonable attorneys’ fees and expenses of investigation), judgments, settlements and penalties (collectively, “Claims”), regardless of whether they arise out of, or result from, third party claims, resulting from (a) personal injury (including, without limitation, death) to any party (including, without limitation, Supplier, Tilson, and their respective employees), or damage to (including, but not limited to, theft of, or environmental damage or contamination of) the property thereof, which are caused in whole or in part by or arise in connection with acts or omissions of Supplier or persons furnished by Supplier, including any employees or agents (each a “Supplier Party”); (b) rights or obligations under any applicable Worker’s Compensation laws with respect to a Supplier Party; (c) the Services provided by a Supplier Party, including but not limited to the adequacy of any disclosures, instructions or warnings related to the Services; and (d) any breach by a Supplier Party of these Terms and Conditions.
2. The foregoing indemnification shall apply irrespective of the cause of such injuries or damage, except where solely caused by Tilson’s gross negligence or willful misconduct. Supplier further agrees to bind its sub-contractors, if any, to similarly indemnify, hold harmless, and defend the Indemnified Parties.  The obligations in this section are in addition to Supplier’s obligation to provide insurance and shall not be limited by any limitation on the amount or type of damages, compensation or benefits payable by Supplier under any laws or regulations relating to employee benefits. Without limiting the foregoing, the defense and indemnification obligations herein are intended to waive any exclusivity-of-remedy defense or employer immunity provisions that may otherwise be available to Supplier under worker’s compensation or similar laws. The indemnity obligations herein shall survive in all respects the expiration or termination of these Terms and Conditions.

18. Set Off. Tilson shall be entitled at all times to set off any amount owing at any time from Supplier to Tilson against any amount payable at any time by Tilson to Supplier.

19. Personnel. Tilson shall have the right, in its sole discretion, to determine that any employees, sub-contractors or other personnel of Supplier are unfit to be working on the Services and, in such event, Supplier shall promptly replace any such personnel. Supplier is solely responsible for ensuring that all of Supplier’s employees and sub-Suppliers are timely paid in accordance with applicable state and Federal law.  Supplier is also solely responsible for withholding or causing Supplier’s sub-Supplier’s (if any) to withhold all Federal, state and local income, social security, unemployment, excise, payroll and all other taxes or charges required by law to be withheld from compensation.  Supplier shall indemnify Tilson for any and all sums due and owing with respect to such taxes or charges relating to withholding of compensation.

20. Independent Contractor. Supplier is an independent contractor and not an agent or employee of Tilson. Nothing in herein or in any Purchase Order shall create a relationship of employer-employee, principal-agent, partner, teaming agreement, or joint venture between Tilson and Supplier. None of Supplier’s employees, agents or sub-contractors shall be considered or in any way represent themselves as being employees of Tilson or be entitled to any of the benefits supplied by Tilson to its own employees. Supplier shall at all times have a designated supervisor for its employees and its Suppliers at the worksite, throughout the performance of the Services.

21. Equal Employment Opportunity.

The provisions of Executive Order 11246, as amended, and particularly Subpart B, §202, paragraph (1) through (7); the Rehabilitation Act of 1973; and the Vietnam Era Veterans Readjustment Act of 1974 are hereby incorporated, including the applicable Rules and Regulations (41 CFR 60-2, 41 CFR 60-741 and 41 CFR 60-300), issued pursuant thereto, and Supplier shall comply with the same, including all amendments thereto.

Supplier shall abide by the requirements of 41 CFR 60-300.5(a), which prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and Suppliers to employ and advance in employment qualified protected veterans.

Additionally, Supplier shall abide by the requirements of 41 CFR 60-741.5(a), which prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and Suppliers to employ and advance in employment qualified individuals with disabilities.

22. Waiver of Consequential Damages. Except as explicitly set forth in these Terms and Conditions, in no event shall either party, its employees, subcontractors, and/or agents, be liable to the other for any type of incidental, special, exemplary, punitive, indirect, or consequential damages or lost profits for any claim or demand of any nature or kind, arising out of or in connection with these Terms and Conditions, any Purchase Order or the performance of Services.

23. Security Breaches. Supplier must maintain a documented procedure to be followed in the event of a suspected attack upon, intrusion upon, unauthorized access to, loss, including theft of, or other security breach involving Supplier owned, managed or used portable devices and/or desktop and laptop computers in which Supplier shall:

1. Promptly investigate and determine if such an attack has occurred; and
2. If a confirmed attack, including unauthorized access, has occurred, then Contractor shall promptly notify Tilson by contacting: Tilson’s network operations center at 866-706-1775 with follow up email to security_notify@tilsontech.com.

After notifying Tilson whenever there is a successful attack upon, intrusion upon, unauthorized access to, loss, including theft of, or other security breach involving Contractor owned, managed or used portable devices and/or desktop and laptop computers, provide Tilson with regular status updates, including, actions taken to resolve such incident, at mutually agreed intervals for the duration of the incident and, within seven (7) calendar days of the closure of the incident, provide Tilson with a written report describing the incident, actions taken by the Contractor.

24. Waiver of Jury Trial. Tilson and Supplier each hereby waive their right to a trial by jury on any and all issues relating to or arising out of their obligations under these Terms and Conditions or any Purchase Order. Supplier acknowledges that is has read and understood the foregoing provision and that it is voluntarily intentionally and knowingly waiving its right to a jury trial.

25. Governing Law. These Terms and Conditions shall be governed by and construed in accordance with the laws of the state of Maine without regard to its conflict-of-law rules.  It is mandatory that any controversy or claim arising out of or relating to these Terms and Conditions or any Purchase Order a) shall be subject to the jurisdiction of the state of [Maine and b) shall be venued in Cumberland County Maine.

26. Assignment and Delegation. Supplier will not assign or transfer, in whole or in part, or delegate any of its obligations hereunder, to any third party without the express written approval of Tilson. Any attempted or purported assignment contrary to this provision shall be deemed null and void.

27. Entire Agreement; Amendment; Order of Precedence. Unless a master agreement between the parties is currently in force, these terms supersede all earlier letters, conversations, purchase orders, proposals, memorandums, and other written and oral communications concerning the subject matter hereof, and no changes in, additions to, or subtractions from, these terms will be binding on the parties unless in writing and signed by Supplier and Tilson. In the event of any inconsistency between these Terms and Conditions, the terms set forth in any Purchase Order, and terms of any other documents incorporated into either, the terms of the Purchase Order shall be given priority over these Terms and Conditions, which shall control over other incorporated documents.

28. Severability. If any term or provision shall be invalid or unenforceable, then such invalidity or unenforceability shall not invalidate or render unenforceable the entirety of these Terms and Conditions.  All other terms or provisions will remain enforceable, and the invalid or unenforceable provision will be deemed modified or reformed, to the minimum extent necessary to cure such invalidity or unenforceability.  Tilson and Supplier agree that any court interpreting any provision of these Terms and Conditions shall, if necessary, reform any such provision to make it enforceable under applicable law.

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