IN CONSIDERATION of my registration with University Language Services, and any of its subsidiaries, divisions, and affiliated companies (“ULS”), and of the mutual covenants and promises contained herein, I (“Freelancer”) hereby agree as follows:
FREELANCER’S QUALIFICATIONS; ENGAGEMENT OF SERVICES
Section 1.1 Freelancer’s Qualifications. Freelancer represents that Freelancer is in the business of providing language services such as: translation, interpreting, transcription, editing, proofreading and related services, and that Freelancer, and/or its employees, possesses the education, training, skills, experience, licenses, supplies and equipment incidental and necessary to the provision of those services. Freelancer acknowledges that Freelancer holds him/her/itself out to the public as an independent business.
Section 1.2 Engagement of Services. ULS may issue project assignments (“Project”) by providing Freelancer with a Purchase Order (previously referred to as a Work Order) in a form approved by ULS. Subject to the terms of this Purchase Order the Freelancer will render the services set forth in each Purchase Order accepted by the Freelancer according to the terms and by the completion dates set forth therein. The Freelancer understands and acknowledges that ULS does not guarantee Freelancer a specific number or duration of assignments.
INDEPENDENCE OF FREELANCER IN PERFORMING SERVICES
Section 2.1 Independent Contractor Status. Freelancer understands and acknowledges that Freelancer is an independent contractor, and nothing in this Agreement is intended, or should be construed, to create a partnership, agency, joint venture or employment relationship. Freelancer acknowledges that Freelancer is not authorized to make any representation, contract or commitment on behalf of ULS unless specifically requested or authorized in writing to do so by a ULS manager. Freelancer acknowledges that Freelancer is not an employee of ULS for state or federal tax purposes, for state unemployment insurance, workers’ compensation or other labor law purposes, or for any other purpose – in particular:
a) Freelancer shall be responsible for providing its own Workers’ Compensation insurance for all projects accepted from ULS; ULS will not assume any liability for Workers’ Compensation claims from Freelancer or its employees or subcontractors; Freelancer will provide evidence of Workers’ Compensation coverage for itself and/or its employees and/or subcontractors, if so requested by ULS;
b) Freelancer is solely responsible for, and will file, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement; Freelancer acknowledges that Freelancer will receive an IRS Form 1099 from ULS for any services rendered to ULS under this Agreement; no part of Freelancer’s compensation will be subject to withholding by ULS for the payment of any social security, federal, state or any other employee payroll taxes;
c) Freelancer is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement, and Freelancer is responsible for the payment of all expenses incurred by Freelancer and/or Freelancer’s employees in the course of performing any services under this Agreement;
d) Freelancer is solely responsible for the payment of all compensation to and expenses of Freelancer’s employees, agents, representatives, and subcontractors, and for the collection, withholding and payment of all social security, federal, state or any other employee payroll taxes applicable to such employees, agents or representatives.
Freelancer retains the right to perform services for others during the term of this Agreement, and it is anticipated by ULS that Freelancer will have, and will perform services for, other clients besides ULS during the term of this Agreement.
Section 2.2 Method of Performing Services. ULS will not supervise, direct or control Freelancer in the manner or method of performing any Project contracted hereunder. Freelancer will determine the method, manner, and means of performing the above-described services to complete any Project contracted hereunder, provided that Freelancer shall satisfactorily perform the services contracted to produce the contracted result in accordance with any specifications agreed to in writing between ULS and Freelancer, whether in a Purchase Order or otherwise. Freelancer acknowledges that both quality and timeliness of Freelancer’s work are vital to ULS and its clients. Freelancer acknowledges that any failure to perform Freelancer’s responsibilities according to these standards or meet the work schedules and deadlines established by ULS or the client may result in non-payment for any work not completed or work completed in an unsatisfactory manner.
Section 2.3 Place and Times of Work. Freelancer shall perform each Project contracted for hereunder at Freelancer’s own place of business or at any place or location, and at such times, as Freelancer shall determine, or as specifically stated in the respective Purchase Order or other agreed upon location.
Freelancer agrees to immediately inform ULS of any potential delay in delivery or inability to meet any requirements.
Section 3.1 Compensation. ULS shall pay Freelancer the fee(s) set forth in each Purchase Order for services rendered pursuant to this Agreement. Upon termination of this Agreement for any reason other than that stated in Section 6.2 below, Freelancer shall be paid fees on the basis stated in the Purchase Order for services which have been completed as of the date of termination.
Section 3.2 Invoices. Freelancer shall submit a separate invoice to ULS for each Project performed by Freelancer. Freelancer shall submit invoices printed on billhead or any type of letterhead, and which includes at least the following information: (i) Freelancer’s name, business name, and business contact information; (ii) an invoice number; (iii) a summary description of the services rendered, including, Purchase Order number if available or date of assignment (iv) the total due. .
INNOVATIONS; CONFIDENTIAL INFORMATION
Section 4.1 Disclosure and Assignment of Innovations.
(a) Innovations; Company Innovations. “Innovations” includes translations, works of authorship (including work made for hire), information fixed in any tangible medium of expression (whether or not protectable under copyright laws) and all other subject matter protectable under patent, copyright, moral right, mask work, trademark, trade secret or other laws. “Company Innovations” are Innovations that Freelancer solely or jointly with others, conceives, reduces to practice, creates, derives, develops or makes within the scope of Freelancer’s work for ULS under this Agreement.
(b) Ownership of Company Innovations. Freelancer hereby does and will assign to ULS or ULS’s designee, Freelancer’s entire worldwide right, title and interest in and to all Company Innovations and all associated and intellectual property rights. Freelancer warrants that all employees, agents, representatives, and subcontractors of Freelancer shall make a similar assignment of all intellectual property rights to all Innovations that such employees, agents, representatives, and subcontractors, solely or jointly with others, conceive, reduce to practice, create, derive, develop or make within the scope of their work for Freelancer and which relate to Freelancer’s work for ULS under this Agreement. Freelancer agrees to assist ULS in any reasonable manner to obtain, perfect and enforce, for ULS’s benefit, ULS’s rights, title and interest in any and all countries, in and to all copyrights, moral rights and other property rights in each of the Company Innovations.
Section 4.2 Confidential Information.
(a) Definition of Confidential Information. “Confidential Information” as used in this Agreement shall mean any and all technical and non-technical information, including but not limited to the text of any documents delivered to Freelancer by or on behalf of ULS and any finished documents thereof prepared or reviewed by or on behalf of Freelancer; it further includes any information of ULS which ULS deems sensitive or confidential, including but not limited to proprietary trade secrets, client, freelancer and other information.
(b) Nondisclosure and Nonuse Obligations. Freelancer acknowledges that during the course of a Project, Freelancer may obtain or have access to Confidential Information. Freelancer agrees not to use or to disclose any Confidential Information obtained during the course of a Project to any person or company for any reason or purpose, unless authorized to do so in writing by ULS. Freelancer further agrees to use due care and diligence to prevent any unauthorized use or disclosure of such information by any employee, subcontractor, or any other third party. Freelancer will immediately give notice to ULS of any unauthorized use or disclosure of any Confidential Information. Freelancer agrees to assist ULS in remedying any such unauthorized use or disclosure of Confidential Information.
Section 4.3 HIPAA Business Associate Agreement Addendum
For assignments where ULS or Freelancer will create, receive, maintain or transmit protected health information (as defined in 45 C.F.R. §160.103) in connection with the services provided by Freelancer, ULS will be a “business associate” and Freelancer will be a “subcontractor” (as those terms are defined in 45 C.F.R. §160.103) for purposes of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and, therefore, they are required to enter into a business associate agreement between them. By executing this Freelancer Agreement, Freelancer agrees to the terms and conditions set forth in the Business Associate Agreement Addendum, which is attached hereto and incorporated by reference herein.
NON-INTERFERENCE; NON-SOLICITATION; CONFLICTS OF INTEREST
Section 5.1 Non-Interference; Non-Solicitation. During this Agreement, and for a period of two (2) years immediately following this Agreement’s termination pursuant to Section 6.2 or 6.3, Freelancer agrees not to solicit or induce any employee or independent contractor of ULS’s to decline to enter into any employment, contractual or other relationship with ULS, or to terminate or breach the terms of any existing employment, contractual or other relationship; nor to solicit the business of any customer of ULS. ULS shall have the right to enforce the terms of this provision in any appropriate court of law or equity, notwithstanding Section 7.8.
Freelancer acknowledges and agrees that any assignment, job, referral or contact established through ULS shall be considered to be an assignment from ULS, and Freelancer agrees to report any such assignment to ULS. Freelancer further acknowledges and agrees that any misrepresentation by Freelancer of the fees earned or hours spent performing services for ULS, or for a contact established through a job referral from ULS, will cause ULS to suffer un-calculable damages to ULS’s reputation and business good will. As such, Freelancer agrees to pay ULS as liquidated damages an amount equal to two times the amount ULS would have been compensated by the client from the assignment or job referral.
Section 5.2 No Conflict of Interest. During the term of this Agreement, Freelancer will not accept work, enter into a contract, or accept an obligation that is inconsistent or incompatible with Freelancer’s obligations, or the scope of services rendered for ULS, under this Agreement. Freelancer warrants that, to the best of Freelancer’s knowledge, there is no other contract or duty currently in effect, which conflicts with or is inconsistent with this Agreement. Freelancer agrees to indemnify ULS from any and all loss incurred by reason of the alleged breach by Freelancer of any services agreement with any third party. This section is not intended to conflict with Freelancer’s right to perform services for others, as set forth in Section 2.1 above.
TERM AND TERMINATION
Section 6.1. Term. This Agreement shall remain in effect and continue to renew each time Freelancer accepts a new assignment to provide services under the terms of a Purchase Order which has been offered to Freelancer by ULS. If either party desires not to extend the terms of this Agreement, and to terminate the relationship, either party may do so by providing thirty (30) days’ written notice to the other pursuant to Section 7.1 below.
Section 6.2 Termination for Cause. In the event of a material breach of this Agreement, the non-breaching Party shall provide the breaching Party with seven (7) days’ written notice to cure said breach, pursuant to Section 7.1 below. If the breach remains uncured following the expiration of the seven (7) day period, the non-breaching party may then terminate the Agreement by written notice. Said termination shall be deemed effective as of the date transmitted to the breaching party.
Section 6.3 Transactions After Termination. Following any termination of this Agreement, all assignments fully completed prior to the effective date of such termination shall be invoiced and paid pursuant to the terms of this Agreement and/or the applicable Purchase Order. With respect to any assignments in progress as of the effective date of termination, if such termination occurs pursuant to Section 6.1, such assignments shall be completed, invoiced and paid pursuant to the terms of this Agreement. If such termination occurs pursuant to Section 6.2, Freelancer shall stop work on such assignments as of the effective date of termination, and compensation shall be paid at the payable rate agreed upon in the Purchase Order only for that work satisfactorily completed by Freelancer at the time of termination.
Section 7.1 Notices. Any notices required under the terms of this Agreement shall be in writing and delivered by (i) personal delivery, or (ii) first class, registered or certified mail. Notices delivered personally will be effective upon actual receipt. Notices mailed will be effective as of two days after mailing. Notices are to be mailed to University Language Services 15 Maiden Lane Suite 300 NY NY 10038 attn: HR Department.
Section 7.2 Entire Agreement; Modifications, Waiver. This Agreement, the Business Associate Agreement Addendum, and as to each Project and the respective Purchase Order constitutes the entire agreement between the parties with respect to the subject matter herein and therein, and supersede all prior oral or written agreements between the parties with respect to the rendering of services by Freelancer for ULS. No modification or amendment of this Agreement or any Purchase Order shall be effective unless in writing and signed by the party to be bound thereby. No term or provision hereof will be considered waived by ULS, and no breach excused by ULS, unless such waiver or consent is in writing and signed by an ULS manager. The waiver by ULS of, or consent by ULS to, a breach of any provision of this Agreement by Freelancer, shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by Freelancer.
Section 7.3 Severability of Clauses. If any provision of this Agreement is held by a court of law to be illegal, invalid or unenforceable, (i) that provision shall be deemed amended to achieve as nearly as possible the same effect as the original provision, and (ii) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
Section 7.4 Survival. The definitions contained in this Agreement and the rights and obligations contained in Article 4, Article 5, and Article 7 shall survive any termination or expiration of this Agreement.
Section 7.5 Injunctive Relief for Breach. Freelancer’s obligations under this Agreement are of a unique character that gives them particular value; Freelancer’s breach of any such obligations will result in irreparable and continuing damage to ULS for which there will be no adequate remedy at law; and, in the event of such breach, ULS will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).
Section 7.6 Governing Law. This Agreement shall be governed in all respects by the laws of the United States of America, and by the laws of the State of New York.
Section 7.7 Binding Arbitration. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial or other Arbitration Rules, including the Optional Rules for Emergency Measures of Protection, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Section 7.8 Execution Date. The Execution Date of this Agreement shall be considered the date upon which Freelancer submitted this Agreement online by clicking on the ‘I Agree’ tab below. Should Freelancer decide to submit a signed hard copy of this Agreement instead, the Execution Date shall be the date Freelancer so signs the Agreement.
Section 7.9 Electronic Signature. Freelancer hereby acknowledges and agrees that by submitting this Freelancer Agreement online, by way of clicking on the ‘I Agree’ tab below, Freelancer is entering into a valid and binding contract. By so submitting this Agreement online, Freelancer is consenting to all of the Agreement’s terms and conditions as set forth above.
Section 7.10 Submittal by Hard Copy. In the alternative, Freelancer may choose to submit this form in hard copy. Should Freelancer choose this option, Freelancer shall print this Agreement, sign, and return to ULS pursuant to Section 7.1 above.
BUSINESS ASSOCIATE AGREEMENT ADDENDUM
University Language Services, and any of its subsidiaries, divisions, and affiliated companies (“ULS”) and Freelancer (each a “Party” and collectively the “Parties”) have entered into the Freelancer Agreement (the “Agreement”) under which Freelancer may use and/or disclose Protected Health Information (PHI) to perform the following service(s): translation, interpretation or transcription.
Both Parties are committed to complying with the Standards for Privacy and Security of Individually Identifiable Health Information promulgated under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health (“HITECH”) Act and its implementing regulations, as they may be updated, amended, or revised (collectively, the “HIPAA Regulations”), including the requirement under 45 CFR §164.502(e)(2) to enter into a business associate agreement with business associates who are subcontractors.
This BA Addendum sets forth the terms and conditions pursuant to which Freelancer will handle PHI received from ULS, or created, received, maintained, or transmitted on ULS’s behalf. The Parties agree as follows:
1.1 Protected Health Information (“PHI”). Protected Health Information shall have the meaning as set out in its definition at 45 CFR §160.103, as such provision is currently drafted and as it is subsequently updated, amended, or revised but shall include only such PHI that Freelancer receives from ULS, or creates, receives, maintains or transmits on ULS’s behalf.
1.2 Any capitalized terms not defined in this BA Addendum shall have the meaning provided in the HIPAA Regulations.
2. PERMITTED USES AND DISCLOSURES OF PHI
2.1 Services. Except as otherwise specified herein, Freelancer may use and disclose PHI as may be necessary to perform its obligations under the Agreement, provided that such use would not violate (a) the HIPAA Regulations if done by ULS, or (b) ULS’s minimum necessary policies and procedures. All other uses and disclosures not authorized by this BA Addendum are prohibited.
2.2 Business Activities of Freelancer. Unless otherwise limited herein, Freelancer may:
a. Use the PHI in its possession for its proper management and administration and to fulfill any present or future legal responsibilities of Freelancer provided that such uses are permitted under state and federal confidentiality laws.
b. Disclose the PHI in its possession to third parties for the purpose of its proper management and administration or to fulfill any present or future legal responsibilities of the Freelancer, provided that Freelancer represents to ULS, in writing, that (i) the disclosures are Required by Law, as that phrase is defined in 45 CFR §164.103, or (ii) Freelancer has received from the third party written assurances regarding its confidential handling of such PHI as required under 45 CFR §164.504(e)(4), and the third party agrees in writing to promptly notify Freelancer of any instances of which it becomes aware of any unauthorized use or disclosure of the PHI.
3. RESPONSIBILITIES OF THE PARTIES WITH RESPECT TO PHI
3.1 Responsibilities of Freelancer. With regard to its use and/or disclosure of PHI, Freelancer hereby agrees to do the following:
a. Use and/or disclose the PHI only as permitted or required by this BA Addendum or as otherwise required by law.
b. To the extent Freelancer is to carry out one or more obligation(s) of any Covered Entity under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s).
c. Use appropriate safeguards to protect the privacy and security of PHI, and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information (EPHI), to prevent use or disclosure of EPHI other than as provided for by this BA Addendum.
d. Disclose to its subcontractors, agents, or other third parties, and request from ULS, only the minimum PHI necessary to perform or fulfill a specific function required or permitted hereunder.
e. Mitigate to the greatest extent possible, any known, harmful effects from any unauthorized use and/or disclosure of PHI.
f. Require any subcontractor or agent that receives, uses, or has access to PHI under this BA Addendum to agree, in a written business associate agreement, to adhere to the same or more stringent restrictions and conditions on the use and/or disclosure of PHI than those applicable to Freelancer pursuant to this BA Addendum.
g. Make available all records, books, agreements, policies, and procedures relating to Freelancer’s use and/or disclosure of PHI to the Secretary for purposes of investigating or determining compliance with the HIPAA Regulations.
h. Freelancer agrees to document any and all disclosures of PHI that must be included in an accounting of disclosures as would be required under 45 CFR §164.528. Freelancer further agrees, within 30 days of receiving a written request from ULS, to provide to ULS such information as is requested by ULS to permit ULS to respond to a request by an individual for an accounting of disclosures of the individual’s PHI in accordance with 45 CFR §164.528.
i. Freelancer agrees to notify ULS as soon as reasonably practicable but not later than five (5) business days of discovery of:
(i) any use or disclosure of PHI not provided for by the BA Addendum of which it becomes aware,
(ii) any suspected breach of unsecured PHI as defined at 45 CFR § 164.402, and
(iii) any Security Incident as defined by 45 CFR §164.304 of which it becomes aware except for any attempted but unsuccessful Security Incident.
Notification under this section shall include the identification of each individual whose PHI has been, or is suspected to have been, accessed, acquired, or disclosed. Freelancer further agrees to make available in a reasonable time and manner any other information needed by ULS to fulfill its obligations under 45 C.F.R. §164.410 or to assist the Covered Entity to fulfill its obligations under 45 C.F.R. §§164.404-164.408.
j. Freelancer agrees to indemnify ULS for (a) the reasonable costs incurred by ULS in connection with any Breach of Unsecured PHI resulting from the acts or omissions of Freelancer, including but not limited to, any identity theft related prevention or monitoring costs, and (b) damages, including attorney fees, costs, settlements and fines, incurred by ULS as a result of the Breach of Unsecured PHI by Freelancer.
3.2 Responsibilities of ULS. With regard to the use and/or disclosure of PHI by Freelancer, ULS hereby agrees that in the event Covered Entity provides ULS with any information that would impact the use or disclosure of PHI by Freelancer, ULS will convey that information to Freelancer.
3.3 Additional Responsibilities of Freelancer with Respect to Handling of Designated Record Set. To the extent Freelancer creates, receives, maintains, or transmits PHI in a Designated Record Set on behalf of ULS, Freelancer hereby agrees to do the following:
a. Within fifteen (15) days of a request by ULS, provide ULS access to the PHI so that ULS can assist a Covered Entity to respond to a request for access or request for copies of PHI by an individual who is the subject of the PHI, or his/her personal representative in accordance with 45 CFR §164.524.
b. Within thirty (30) days of a request by ULS, provide ULS with access to PHI in the custody of Freelancer so that ULS can assist Covered Entity to make any amendment(s) to the PHI in accordance with 45 CFR §164.526.
4. TERM AND TERMINATION
4.1 Term. This BA Addendum shall become effective on the date of execution of the Agreement. This BA Addendum shall remain in effect until termination of the Agreement, unless terminated sooner pursuant to paragraph 3.2, below.
4.2 Termination. Notwithstanding anything in the Agreement to the contrary, upon becoming aware of a material breach of this BA Addendum, the non-breaching party may elect, in its sole and absolute discretion (1) to terminate this BA Addendum and the Agreement immediately, or (2) to provide the breaching party an opportunity to cure the breach. For purposes of this BA Addendum, “material breach” shall include, but is not limited to, the occurrence of any unauthorized use or disclosure of PHI. If the non-breaching party elects to provide the breaching party with an opportunity to cure and the breaching party fails to do so within the time specified by the non-breaching party, the BA Addendum shall terminate on the deadline for curing the breach.
4.3 Effect of Termination. Upon the event of termination pursuant to this Section 4, Freelancer agrees to return or destroy all PHI and retain no copies. Prior to doing so, Freelancer further agrees to recover any PHI in the possession of its subcontractors or agents, and upon request agrees to provide a certificate of destruction for all PHI stored by Freelancer or its agents, subcontractors, or third parties providing storage or back up services on behalf of Freelancer. If Freelancer determines that it is not feasible to return or destroy said PHI, Freelancer will notify ULS in writing. Upon mutual agreement of the Parties that the return or destruction is not feasible, Freelancer further agrees, and will require its subcontractors and agents to agree, to extend any and all protections, limitations, and restrictions contained in this BA Addendum to the use and/or disclosure of any PHI retained after the termination of this BA Addendum, and to limit any further uses and/or disclosures to the purposes that make the return or destruction of the PHI infeasible.
4.4 Survival. Freelancer’s obligations and duties under this BA Addendum with respect to PHI created, received or maintained by Freelancer while performing under the Agreement, or on ULS’s behalf, shall survive the termination of the Agreement and of this BA Addendum and shall continue for as long as that PHI remains in the possession of Freelancer or of its agents or subcontractors.
5.1 Amendments; Waiver. This BA Addendum may not be modified, nor shall any provision hereof be waived or amended, except in a writing duly signed by authorized representatives of the Parties. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events.
5.2 No Third Party Beneficiaries. Nothing expressed or implied in this BA Addendum is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.
5.3 Notices. Any notices to be given hereunder to a Party shall be delivered as set forth in the Agreement.
5.4 Conflicts. In the event of a conflict between the terms and conditions in the Agreement and the terms and conditions in this BA Addendum relating to the protection of PHI, the terms and conditions of this BA Addendum shall prevail. In the event of a conflict between the terms and conditions in the Agreement and the terms and conditions in this BA Addendum on all matters not related to the protection of PHI, the terms and conditions of the Agreement shall prevail.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
Executed this day of __________, ______ 20____ .
By: _____________________________________ .
(If submitting by hard copy)
Revised on January 1, 2019