INDEPENDENT CONTRACTOR AGREEMENT
IMPORTANT – READ THIS INDEPENDENT CONTRACTOR AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN PURCHASE ORDER THAT INCORPORATES THIS AGREEMENT (THE “PURCHASE ORDER”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY; IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT PROVIDE SERVICES TO OREGON TRANSLATION.
This Agreement is made and entered by and between OREGON TRANSLATION LLC, a limited liability company organized pursuant to the laws of the State of Oregon, having a principal place of business at 921 SW Washington St., Suite 456, Portland, Oregon 97205 (hereinafter referred to as the “Company”), AND the “Contractor” referred to on the Purchase Order.
In CONSIDERATION OF THE MUTUAL COVENANTS HEREIN, The parties agree as follows:
Article 1. CONTRACTOR’S QUALIFICATIONS; ENGAGEMENT OF SERVICES
1.1 Contractor’s Qualifications. The Contractor represents that the Contractor is in the business of providing services for translation, graphic design, multimedia, and/or interpreting services, and that the Contractor (or the Contractor’s employees, if the Contractor is a business entity) possesses the education, training, skills, experience, licenses, supplies and equipment incidental and necessary to the provision of translation services.
1.2 Engagement of Services. The Company may issue Purchase Orders (each, a “Purchase Order”) to the Contractor that substantially describe the services to be rendered, languages involved, project timeline, and fees for services to be rendered. Subject to the terms of this Agreement, the Contractor will render the services set forth in each Purchase Order accepted by the Contractor according to the terms and by the completion dates set forth in such Purchase Order.
Article 2. INDEPENDENCE OF CONTRACTOR IN PERFORMING SERVICES
2.1 Independent Contractor Status. The Contractor’s relationship with the Company is that of an independent contractor, and nothing in this Agreement is intended, or should be construed, to create a partnership, agency, joint venture or employment relationship. The Contractor is not authorized to make any representation, contract or commitment on behalf of the Company unless specifically requested or authorized in writing to do so by a Company manager. The Contractor represents and warrants to the Company that the Contractor operates an independent business performing professional services of the nature to be performed hereunder, and holds himself/herself/itself out to the public as such. Both parties acknowledge that: a) the Contractor is not an employee of the Company for state or federal tax purposes, for state unemployment insurance, workers’ compensation or other labor law purposes, or for any other purpose – in particular, the Contractor shall be responsible for providing its own general liability and Workers Compensation insurance for all projects in which the Contractor will be providing services on-site at the premises of the Company or the Company’s clients; the Company will not assume any liability for Workers Compensation claims from the Contractor or its employees or subcontractors and if the Contractor assigns work to employees or subcontractors pursuant to Article 2.2 of this Agreement, the Contractor will provide evidence of such liability or Workers Compensation coverage for itself and/or its employees and/or subcontractors, if so requested by the Company, b) the Contractor is solely responsible for, and will file, on a timely basis, 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, c) the Contractor is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement, including but not limited to office expenses, transportation, equipment (e.g., computer, printer, software, fax, etc.), supplies, legal and accounting services, d) no part of the Contractor’s compensation will be subject to withholding by the Company for the payment of any social security, federal, state or any other employee payroll taxes, and e) the Contractor shall be solely responsible for the payment of all compensation to and expenses of the Contractor’s employees, agents, representatives, and subcontractors that may be incurred with respect to any work performed under this Agreement, 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. The Contractor retains the right to perform services for others during the term of this Agreement, and it is anticipated that the Contractor will have, and will perform services for, other clients besides the Company during the term of this Agreement.
2.2 Method of Performing Services. The Company will not supervise, direct or control the Contractor in the manner or method of performing any Project contracted hereunder. The Contractor will determine the method, manner, and means of performing the above-described services to complete any Project contracted hereunder, provided that the Contractor shall satisfactorily perform the services contracted to produce the contracted result in accordance with the specifications agreed to in writing between the Company and the Contractor, whether in a Purchase Order or otherwise. The Contractor shall perform each Project contracted for hereunder at the Contractor’s own place of business or at any place or location, and at such times, as the Contractor shall determine, or as specifically agreed in the respective Purchase Order. As a specific exception, the Contractor may only subcontract or otherwise delegate the Contractor’s obligations after obtaining the Company’s express written consent, which may be granted on a case-by-case basis for distinct Purchase Orders. This is in the interest of protecting all parties from legal liabilities under import/export laws, confidentiality clauses, and other legal ramifications.
2.3 As-Needed Basis. Contractor shall work strictly on an as-needed basis; Oregon Translation is under no obligation to provide Contractor with any minimum amount of work. Similarly, Contractor is under no obligation to accept any work offered by Oregon Translation. Upon either Oregon Translation or its client terminating Contractor’s services, Contractor shall be paid strictly for work performed prior to such termination, subject to the Warranty provision described below.
2.4 Compliance with Laws. Contractor shall adhere to all applicable state, federal, and local laws, which may apply to Contractor’s services, including but not limited to: obtaining all business registrations or licenses required by state or local law for the conduct of the business; and filing all federal, state, and local income tax returns, as part of Contractor’s personal income tax returns.
Article 3. COMPENSATION; INVOICES; DELIVERY
3.1 Compensation, Invoices. The Company shall pay the Contractor the fee(s) set forth in each Purchase Order for services rendered pursuant to this Agreement. The Contractor shall submit a separate invoice to the Company for each Purchase Order performed by the Contractor. The Contractor’s invoices shall be printed on the Contractor’s formal business letterhead stationery, and each shall include at least the following information: (i) the Contractor’s name, business name, and business address; (ii) the Company’s Project Number and/or Purchase Order Number for the Project; (iii) a summary description of the services rendered, including: the languages involved, the number of words in the finished translation provided to the Company and/or the number of hours worked, and the total due. Oregon Translation shall pay Contractor on a “Net 45 days” basis from the date the work is completed/terminated AND the invoice is received.
3.2 Delivery. The Contractor agrees to deliver all services within the time frame(s) and in accordance with the Company’s quality control procedures agreed to in each Purchase Order or otherwise, and to immediately inform the Company of any potential delay in delivery or inability to comply with quality control procedures.
Article 4. INNOVATIONS; CONFIDENTIAL INFORMATION
4.1 Disclosure and Assignment of Innovations, Work for Hire.
4.1.1 Definition of Innovations. “Innovations” includes translations, works of authorship, audiovisual recordings (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. Contractor understands that Contractor will develop, make, conceive of, learn of, or reduce to practice, either alone or jointly with others, during his/her business relationship with Oregon Translation, various Innovations. Contractor agrees that if any of the Innovations or any portion thereof are copyrightable or otherwise have proprietary rights, said Innovation or any portion thereof shall be deemed to be a “work made for hire,” as such term is defined in the Copyright Laws of the United States.
4.1.2 Assignment. Contractor hereby grants, assigns and transfers to the Company or the Company’s designee the Contractor’s entire worldwide right, title and interest in and to all Innovations and in and to all patents, copyrights, trademarks, trade secrets, royalties, and other proprietary rights in or based on the Innovations. Contractor will cooperate and, at Company’s request, will promptly execute documents of assignment, oaths, declarations and other documents, prepared by or on behalf of the Company, to effect the foregoing or to perfect or enforce any proprietary rights resulting from or related to this Agreement. Contractor will preserve any such Innovation as part of the Confidential Information.
4.1.3 During the course of producing translations, Contractors and/or the Oregon Translation commonly create or expand upon translation memories or glossaries or termbases (collectively, “Translation By-products”). Such Translation By-Products shall not be considered “work made for hire”; instead both Contractor and Oregon Translation will have a non-exclusive, non-transferable, perpetual license to use, reproduce, modify such Translation By-Products. Neither party shall hold an exclusive copyright over such Translation By-products, unless otherwise mutually agreed between Oregon Translation and Contractor and expressly stipulated in the Purchase Order written at the time of the work.
4.2 Confidential Information. Contractor acknowledges that s/he may, in the course of performing its/his/her responsibilities as an Independent Contractor, be exposed to or acquire information that is proprietary to Oregon Translation or to one of Oregon Translation’s customers, clients, contractors, or affiliate companies to whom Oregon Translation owes a duty of confidentiality.
4.2.1 Definition of Confidential Information. Confidential and Proprietary Information shall include, but is not limited to, any and all information not already in the public domain that s/he obtained through or on behalf of Oregon Translation, or as a result of contracting with Oregon Translation, regarding Oregon Translation or its customers’ business, systems, operations, customers, clients, contractors, procedures, manuals, software, equipment, techniques, including without limitation, all brochures, flyers, promotional materials and literature, mailing lists, lists of prospective customers, sales and marketing techniques, names and addresses of Oregon Translation customers or clients, business plans, marketing material or information, financial or marketing data, customer lists or any information relating to Oregon Translation customers, processes, software, procedures or business. Confidential Information does not include that which the Contractor can demonstrate by written records was previously known; that which is now, or becomes in the future, public knowledge other than through acts or omissions of the Party; or that which is lawfully obtained by the Parties from sources independent of this business relationship.
4.2.2 Nondisclosure and Nonuse Obligations. Contractor agrees to hold all confidential and proprietary information in strict confidence and not to copy reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose such information to third parties or to use such information for any purposes whatsoever other than the provision of Services to Oregon Translation or its client or affiliate companies. Contractor further agrees (a) not to use Confidential and/or Proprietary information for her own benefit or for the benefit of any other business entity; (b) use Confidential and/or Proprietary Information in any way that would be detrimental to Oregon Translation’s business; (c) safeguard the information against disclosure to others with the same degree of care as exercised with its own information of a similar nature. A disclosure of Confidential Information by the Contractor, either (a) in response to a valid order by a court or other governmental body, (b) otherwise required by law, or (c) necessary to establish the rights of either under this Agreement, shall not be considered a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the Contractor shall provide prompt prior written notice thereof to the Company in order to enable the Company to seek a protective order or otherwise prevent such disclosure.
4.2.3 Remedies. Contractor acknowledges and agrees that any violation or threat of any violation of this Confidentiality Statement may be appropriately addressed by any and all available legal and equitable relief; including but not limited to a temporary restraining order or other injunction. The confidentiality provisions of this Statement shall be binding upon the parties hereto and upon their successors and assignees and shall survive the termination of Services.
4.3 Return of Company Property. Upon termination of Contractor’s business relationship Oregon Translation for any reason whatsoever, voluntarily or involuntarily, and at any earlier time Oregon Translation requests, Contractor will deliver to the person designated by Oregon Translation all originals and copies of all documents, records, data, and other property of Oregon Translation in Contractor’s possession, under Contractor’s control or to which Contractor may have access irrespective of whether such items were prepared by Contractor. Contractor shall not reproduce or appropriate for its own use, or for the use of others, any property of Oregon Translation, including but not limited to Confidential Information or Innovation.
Article 5. NON-INTERFERENCE; NON-SOLICITATION; CONFLICTS OF INTEREST
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 Article 6.3, the Contractor shall not solicit or induce any employee or independent contractor of the Company to decline to enter into any employment, contractual or other relationship with the Company, or to terminate or breach the terms of any such employment, contractual or other relationship. In addition, unless otherwise agreed to by the parties in writing, during this Agreement and for a period of two (2) years immediately following this Agreement’s termination or expiration, the Contractor shall not solicit the business of any customer of the Company listed in a Purchase Order or otherwise communicated by the Company to Contractor with respect to a particular project. Notwithstanding the provisions of Article 8.6 (“Applicable Law”) of this Agreement, the Company shall have the right to enforce the terms of this provision in any appropriate court of law or equity.
5.2 No Conflict of Interest. During the term of this Agreement, the Contractor will not accept work, enter into a contract, or accept an obligation that is inconsistent or incompatible with the Contractor’s obligations, or the scope of services rendered for the Company, under this Agreement. The Contractor warrants that, to the best of the Contractor’s knowledge, there is no other contract or duty on the Contractor’s part which conflicts with or is inconsistent with this Agreement. The Contractor agrees to indemnify the Company from any and all loss incurred by reason of the alleged breach by the Contractor of any services agreement with any third party.
Article 6. TERM AND TERMINATION
6.1 Term. This Agreement is effective as of the date it is accepted via electronic confirmation or signed. It shall continue in effect until either party terminates the Agreement.
6.2 Termination. Except during the term of a Purchase Order, Either party may terminate without cause after giving ten (10) business days written notice to the other party. The parties shall deal with each other in good faith during the 10-business-day period and this Agreement shall remain in effect during this period. The Company may also terminate this Agreement immediately upon the Contractor’s material breach of any provision or obligation owed by the Contractor under this Agreement or a Purchase Order which is not remedied within a five (5) calendar day period.
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, (i) if such termination occurs without cause, such assignments shall be completed, invoiced and paid after termination pursuant to the terms of this Agreement, as if not terminated with respect thereto, unless otherwise specifically agreed by the parties in writing, or (ii) if such termination occurs with cause, the Contractor shall stop work on such assignments as of the effective date of termination, and no compensation shall be due therefor, except for such ratable portion of the agreed fees for work, if any, as shall be allocable to such of the services, if any, as shall have been satisfactorily performed and delivered to the Company before the date of termination and not paid for.
Article 7. INDEMNITY AND WARRANTY
7.1 Indemnity. Contractor agrees to indemnify and hold harmless Oregon Translation from and against any and all claims or causes of action for personal injury, illness, wrongful death, property damage, consequential and exemplary damages arising out of the negligent acts, professional malpractice, violations of Confidentiality provisions in this Agreement, omissions or errors of Contractor which arise from Contractor’s provision of services pursuant to this Agreement.
7.2 Warranty. Contractor warrants his/her services provided under this Agreement to meet minimum industry standards. Contractor-provided services under this Agreement that fail to meet minimum standards, as determined by Oregon Translation in its sole discretion, may result in a renegotiation of rates owed by Oregon Translation, or in Contractor re-doing the work at issue. Oregon Translation shall exercise such discretion reasonably and will work in good-faith with Contractor to come to a reasonable resolution.
Article 8. GENERAL PROVISIONS
8.1 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 economic 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.
8.2 Survival. The rights and obligations contained herein – especially Article 4 (Innovations; Confidential Information) and Article 5 (Non-Interference; Non-Solicitation; Conflicts of Interest) shall survive any termination or expiration of this Agreement.
8.3 Injunctive Relief for Breach. The Contractor’s obligations under this Agreement are of a unique character that gives them particular value; the Contractor’s breach of any such obligations will result in irreparable and continuing damage to the Company for which there will be no adequate remedy at law; and, in the event of such breach, the Company 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).
8.4 Headings. Headings are for convenience only and are not to be considered when interpreting provisions or meanings of this Agreement.
8.5 Facsimile Signature. The parties hereto agree that the signature(s) of each party contained in copies of this Agreement sent via facsimile or electronic message format shall have the same effect as the original signature of each such party to bind such party to the terms and conditions of this Agreement.
8.6 Applicable Law & Dispute Resolution. This agreement shall be governed by, and construed under, the laws of the State of Oregon without regard to conflict of laws principles. The parties hereby agree to submit to the exclusive jurisdiction of the State Courts in Washington County and the Federal Courts of the State of Oregon for any disputes, claims, or causes of action arising out of or in connection with this Agreement, or any services herein, although the parties may agree to arbitration. In any event, if any dispute arises under this Agreement, the parties agree that a good-faith attempt to resolve the dispute shall be made at a meeting at a neutral site with a neutral third-party mediator, prior to the filing of any lawsuit.
8.7 Entire Agreement. This agreement constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between Oregon Translation and Contractor. Amendments to this agreement must be in writing and bear the signature of both parties. The waiver by either party of a breach of any provision of this Agreement shall not be construed, as a waiver of any subsequent breach.