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.
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.
8. Representations and Warranties
9. Confidential Information.
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.
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.
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:
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.