Field Service Technician

Available training.
$30-$70 per hour
1099 Start with intent to become W2 employees.

Are you focused and driven; take pride in delivering the highest quality product?

InDemand has customers in every major city in the US: from small businesses to enterprise corporations. Our company is looking for reliable, detail-oriented field network technicians, looking to invest with Accucode in their career. Join the family of Accucode professionals that take pride in the quality of their work!

This is a long-term position to support business communities across the country with in-store technology: from installing a new point-of-sale device to troubleshooting their network.

The techs we are looking for have the following traits:

Maintaining a professional attitude, even under pressure
Going beyond expectations and working to keep customers happy with 100% resolution
Outgoing personality, prompt and respectful to customer’s needs and requests
Passionate about the challenges of network problem-solving
Interested in finding a simplified solution, and able to explain to customers
Excited to learn new skills and grow with our company

Requirements:

Must be able to pass a background check
Must have flexible availability
Must have valid state issued driver’s license and insurance
Must have reliable transportation
Must have mobile device (phone or tablet) and laptop computer (for troubleshooting networks, etc.)
Some technical experience desired
Good communication skills for responding to customer’s questions, problems, and requests to resolve issues with the ability to translate technical issues into layman’s terms
Respectful attitude with a willingness to go above and beyond to make the customer happy and support their business needs

BONUS SKILLS:

Military Veteran with networking background
CCNA, CCNP, Network +, or otherwise certified in Networking
Windows Desktop proficient

Step 1 of 3 - Personal Information

33%

Name*
First Last
Email*
Phone*
Address*
Street Address Address Line 2 ZIP / Postal Code
Primary city of service*
Miles willing to travel*

Skills
Select the skills that apply to you and provide us with your years of experience. Not all skills listed are required. This allows us to better place your services
- Low Voltage Cabling
Years of Experience
- Data Rack Hardware Installation
Years of Experience
- Wireless Network Hardware Installation
Years of Experience
- Terminal/POS Installation
Years of Experience
- Telcom/VoiP Installation
Years of Experience
Other Skills*

Terms & Conditions Overview
1. Independent Contractor will be hired as a 1099 independent contractor and must be open to becoming an Accucode W-2 employee in the future, if requested by Accucode. This is not a guarantee of future employment.
2. Independent Contractor must be legally authorized to work in the United States.
3. Independent Contractor must be willing to submit to a drug test as specified in Addendum A.
4. Independent Contractor must be willing to submit to a background check as specified in Addendum A.
5. Independent Contractor must maintain Workers’ Compensation insurance in accordance with statutory requirements applicable in each state which the work is to be performed and Employer's Liability or “Stop Gap” insurance with limits not less than $1,000,000 each accident.
6. Independent Contractor must maintain Commercial General Liability and Commercial Auto liability insurance (if vehicles are used in the performance of the work) with limits of not less than $1,000,000 each, naming Accucode as additional insured.
7. If Independent Contractor provides any consulting or professional services, design services or software development, installation, or support, either for Accucode use or for resale to Accucode customers, Errors & Omissions Liability Insurance covering acts, errors and omissions arising out of Independent Contractor’s operations or services with limits of not less than $1,000,000 per claim and, if applicable, coverage will include loss arising from unauthorized access or use that results in identity theft or fraud.
8. If Independent Contractor (i) has access to Accucode customer accounts or customer information, (ii) accepts payment from third parties for Accucode products and services, or (iii) has access to Accucode or Accucode customer premises, Independent Contractor will provide Employee Dishonesty Insurance or a Fidelity Bond covering all loss for which Independent Contractor is legally liable in an amount not less than $1,000,000.
9. Independent Contractor must provide Accucode notification if Independent Contractor was employed by CenturyLink or any of its affiliates.
Full Terms & Conditions
Procurement Standard Terms and Conditions Introduction Below is a summary of Accucode’s key Standard Terms and Conditions encompassed in this Agreement. This summary is provided for Independent Contractor’s reference. It is not intended to summarize all of Accucode’s Standard Terms and Conditions and should not be relied upon as the full expression of the Standard Terms and Conditions contained herein. Independent Contractor must read and and agree to abide by all terms and conditions contained in this Agreement prior to applying for a position with Accucode :
1. Independent Contractor will be hired as a 1099 independent contractor and must be open to becoming an Accucode W-2 employee in the future, if requested by Accucode. This is not a guarantee of future employment.
2. Independent Contractor must be legally authorized to work in the United States.
3. Independent Contractor must be willing to submit to a drug test as specified in Addendum A.
4. Independent Contractor must be willing to submit to a background check as specified in Addendum A.
5. Independent Contractor must maintain Workers’ Compensation insurance in accordance with statutory requirements applicable in each state which the work is to be performed and Employer's Liability or “Stop Gap” insurance with limits not less than $1,000,000 each accident.
6. Independent Contractor must maintain Commercial General Liability and Commercial Auto liability insurance (if vehicles are used in the performance of the work) with limits of not less than $1,000,000 each, naming Accucode as additional insured.
7. If Independent Contractor provides any consulting or professional services, design services or software development, installation, or support, either for Accucode use or for resale to Accucode customers, Errors & Omissions Liability Insurance covering acts, errors and omissions arising out of Independent Contractor’s operations or services with limits of not less than $1,000,000 per claim and, if applicable, coverage will include loss arising from unauthorized access or use that results in identity theft or fraud.
8. If Independent Contractor (i) has access to Accucode customer accounts or customer information, (ii) accepts payment from third parties for Accucode products and services, or (iii) has access to Accucode or Accucode customer premises, Independent Contractor will provide Employee Dishonesty Insurance or a Fidelity Bond covering all loss for which Independent Contractor is legally liable in an amount not less than $1,000,000.
9. Independent Contractor must provide Accucode notification if Independent Contractor was employed by CenturyLink or any of its affiliates.
1. Definitions
1.1 “Affiliate” means an entity, directly or indirectly, Controlling, Controlled by or under common Control with a party, or any such entity that is subsequently divested. 1.2 “Accucode” means Accucode, Inc. or, alternatively, the Accucode Affiliate named in the Order. 1.3 “Accucode Confidential Information” means all information relating to the Order. Accucode Confidential Information does not include information that is: (i) rightfully known by Independent Contractor before negotiations leading to the Order; (ii) independently developed by Independent Contractor without use of the Accucode Confidential Information; (iii) part of the public domain or (iv) is lawfully obtained by Independent Contractor from a third party without any confidentiality violation. 1.4 “Control” means direct or indirect ownership of greater than 50% of: (a) the shares entitled to vote for the election of the board of directors or other governing body of a corporation, and (b) the equity interest of any other entity. 1.5 “Customer” means a buyer or user of or subscriber to one or more services or products offered by Accucode or an Accucode Affiliate. 1.6 “Documentation” means information necessary for the use of Purchases. 1.7 “Independent Contractor” means the person or entity to which an Order is issued and any of its Affiliates that provide Purchases. 1.8 “Independent Contractor Employees” means Independent Contractor’s employees, who perform services, act on Independent Contractor’s behalf or are paid by Independent Contractor in connection with an Order. 1.9 “Independent Contractor Personnel” means Independent Contractor Employees, Subcontractors, or agents who perform services, act on Independent Contractor’s behalf, or are paid by Independent Contractor in connection with the Agreement. 1.10 “Non-Waivable Terms” means the Sections titled “Representations and Warranties”; “Confidential Information”; “Indemnification and Insurance”; “Work Product, Licensing”; “Limitation of Liability”, and “Dispute Resolution.” 1.11 “Order” means the purchase or task order issued by Accucode and accepted by Independent Contractor. 1.12 “Purchases” means, collectively or individually, the products or services purchased, or software licensed, pursuant to an Order. 1.13 “Specific Terms and Conditions” means any additional terms which are incorporated by reference in these Procurement Standard Terms and Conditions, or in the Order. 1.14 “Specifications” means the Terms, the Order, any Documentation, written materials of Independent Contractor for the Purchases, and industry standards. 1.15 “Terms” means these Procurement Standard Terms and Conditions.
1. Application, Conflicts
2.1 Application. These Terms apply if: (a) Independent Contractor accepts an Order from Accucode, or ships, or provides Purchases; and (b) no executed master agreement is in effect between Accucode and Independent Contractor. If a master agreement is in effect between the parties, the master agreement applies to the Order in lieu of these Terms. Except for terms expressly agreed to in writing and signed by an Accucode representative, any terms that conflict with or are not consistent with the Terms are not valid. 2.2 Conflicts. If a conflict exists between the Order, these Terms, and any other documents related to the Purchases, the order of precedence is: (1) the Non-Waivable Terms; (2) the Order; (3) if applicable, Specific Terms and Conditions; (4) these Terms; and (5) other documents attached to the Order. Any other forms or terms related to the Order, including any terms on Independent Contractor’s website, product schedule, “shrink-wrap” or “click wrap” agreement or other pre-printed or boilerplate terms will have no force or effect.
1. Orders, Invoicing
3.1 Prices, Acceptance. Each Order will separately state (a) all applicable charges and taxes and (b) all applicable charges for shipment and transportation. Independent Contractor will accept or reject all Orders within 24 hours of receipt from Accucode. Accucode’s current pricing structure shall be communicated to Independent Contractor under separate cover and may be updated from time to time. Independent Contractor is responsible for verifying Accucode’s current pricing prior to accepting an Order. 3.2 Shipment. Unless otherwise specified in the Order, Independent Contractor will pack, mark, label, document and ship any Purchases to the location specified in the applicable Order in accordance with the Accucode Statement of Work (SOW) which is incorporated herein by this reference. Independent Contractor will refer to the most current version of the Accucode Statement of Work at the time of each shipment. Unless otherwise indicated, Independent Contractor will ship Purchases using ground transportation and Accucode will pay the reasonable shipping costs. Title to the Purchases and risk of loss or damage will transfer to Accucode on the earlier of (i) delivery to Accucode’s designated carrier, (ii) Accucode taking possession at Independent Contractor’s facility, or (iii) Independent Contractor’s delivery to Accucode’s designated location, if permitted under the Order. 3.3 Modifications. Accucode may modify or cancel any Order prior to acceptance without penalty. After Independent Contractor’s acceptance, Accucode may, without penalty: (a) delay any or all Purchases prior to delivery, or (b) with at least 5 days written notice, modify or cancel any or all Purchases. No change, amendment, or modification of the Order will be effective unless in writing by means of an Accucode change Order. 3.4 Accucode Order and Invoicing Procedures. Independent Contractor will comply with all applicable Accucode order and invoice procedures, including requirements related to submitting notices and invoices. 3.5 Issuance of Invoices. Except as provided in these Terms or unless specified otherwise in an Order, Independent Contractor will invoice Accucode upon Accucode’s acceptance of Purchases. 3.6 Invoice Content, Taxes. Each invoice will contain an itemized description of the Purchases and will separately state (a) all applicable charges and taxes and (b) all applicable charges for shipment and transportation. Independent Contractor will list the Order number on any invoice it submits for payment. Independent Contractor will be responsible for applicable sales and use taxes for the Purchases for which Accucode has not provided Independent Contractor with an exemption certificate. Independent Contractor will separately state all sales and use taxes and all taxable and non-taxable charges on all invoices issued to Accucode. Accucode will not be responsible for any taxes imposed on Independent Contractor arising from Independent Contractor’s consumption of goods and services. Independent Contractor is responsible for all other taxes, duties and fees. 3.7 Payment Due Date. Accucode will pay undisputed invoices in U.S. dollars within 45 days of receipt of a proper invoice. Accucode will receive a 2% discount against the undisputed amount of any Independent Contractor invoice if payment is made on the undisputed amount within 10 business days after Accucode receives Independent Contractor’s invoice. Payment by or on behalf of Accucode prior to the due date will be subject to an early payment discount and processing fees, as determined by Accucode and accepted by Independent Contractor. Accucode will pay disputed amounts, if owed, within 45 days of resolution of a dispute. Accucode has the right to offset any amount owed by Independent Contractor to Accucode or any Accucode affiliate under the Order or any other agreement against any amount owed by Accucode or any Accucode affiliate to Independent Contractor.
1. Acceptance
Unless otherwise specified in an Order, Accucode will give notice of rejection or be deemed to accept: (a) services within 45 days after Independent Contractor’s notice of completion, (b) products and software within 60 days after Independent Contractor’s notice of (i) installation, if Independent Contractor performs the installation, or (ii) delivery, if Independent Contractor does not perform the installation. Independent Contractor will, at its expense, repair, re-perform or replace the Purchases, as applicable until Accucode accepts or finally rejects the Purchases. If Accucode accepts any Purchases that contain a defect or nonconformity not apparent on examination, Accucode may revoke acceptance. If Accucode finally rejects or revokes acceptance, Independent Contractor will refund all amounts paid by Accucode for the Purchases. Accucode may test or inspect all Purchases delivered, but Accucode’s inspection, testing or payment (or lack of inspection, testing or payment) is not deemed acceptance of Purchases or a waiver of any right or warranty and does not preclude Accucode from rejecting defective Purchases that do not meet Accucode’s specifications. Substitute goods or services are not permitted without Accucode's authorization.
1. Risk of Loss
Until acceptance of Services by Customer or by Accucode or until return of the property to Accucode, Independent Contractor will bear the risk of loss to any property utilized in the installation including, but not limited to, any equipment to be installed, materials, supplies or other property that may be delivered to Independent Contractor. Independent Contractor will take all reasonable and necessary precautions to prevent damage, loss or theft of the property. At the completion of Services, Independent Contractor agrees to return promptly all unused material and supplies to Accucode. Independent Contractor agrees to reimburse Accucode for the actual cost to replace any such items that are lost, damaged or stolen prior to acceptance of the Services or which are not promptly returned to Accucode at the completion of the Services. Accucode will have the right to deduct the cost thereof from any payments due Independent Contractor.
1. Clean Up
If Independent Contractor performs Services on Customer’s premises, Independent Contractor will remove all waste material, rubbish and other debris from and about the work site, as well as all tools, scaffolding, construction equipment, machinery and surplus materials and will at all times keep the premises free from accumulations of the same. Upon completion of the Services, Independent Contractor will restore the work site or arrange to have the work site restored to essentially its former condition at no additional cost to Accucode.
1. Representations and Warranties
Independent Contractor represents and warrants that:
1. Independent Contractor has all requisite ownership, rights and licenses to perform fully its obligations arising in connection with the Order and to grant to Accucode all rights to the Purchases, including good and marketable title for tangible products, free and clear from any and all liens, adverse claims, encumbrances and interests of any third party;
1. Purchases will: (i) conform with all Specifications; and (ii) be free from deficiencies and defects in materials, workmanship, design and performance;
1. Purchases that involve services will be performed in a professional and workmanlike manner;
1. Purchases, and use of the Purchases, as permitted under the Order, will not infringe, violate, or misappropriate any intellectual property or proprietary right of any third party;
1. Independent Contractor will, at its expense, promptly correct replace or refund all amounts paid by Accucode for non-conforming Purchases;
1. The software or data included in the Purchases will not contain any software viruses or other malicious computer instructions designed to damage, disable, or shut down a computer system or any component of a computer system, including security features or data.
1. Independent Contractor will not incorporate, contribute, or combine any “open-source” software with any Purchases without Accucode’s consent. “Opensource” software means any software that requires as a condition of use, modification, or distribution that other software incorporated into, derived from, or distributed with such software be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works, or (c) redistributable at no charge.
1. Confidential Information
Independent Contractor may use and copy the Accucode Confidential Information only for the purpose of performing its obligations under the Order. Copies Independent Contractor makes of Accucode Confidential Information must contain the same confidential or proprietary notices or legends as the original. Independent Contractor will not disclose Accucode Confidential Information to any third party without Accucode’s prior written consent. Independent Contractor will protect Accucode Confidential Information with the same degree of care as it uses to protect its own information of like importance, but not less than reasonable care. Upon cessation of work, or upon request, Independent Contractor agrees to promptly return all documents and other materials that contain or relate to Accucode Confidential Information.
1. Accucode Property
Any items furnished by Accucode to Independent Contractor under the Order are and remain the property of Accucode. While in Independent Contractor's possession or control, Independent Contractor will use these items only for performance of the Order, maintain them in good condition (ordinary wear and tear excepted), and bear the risk of loss.
1. Independent Contractors, Subcontracting
10.1 Independent Contractor. Independent Contractor is an independent contractor and not an agent or employee of Accucode, notwithstanding Section 10.2. Independent Contractor is solely responsible for paying wages, taxes, salaries, benefits and any other compensation to or claims by employees. The Order does not create a partnership, joint venture, or similar relationship. Neither Independent Contractor nor Independent Contractor Personnel have any authority to act on behalf of, or to bind Accucode to any obligation. Independent Contractor and Independent Contractor Personnel are not employees or joint employees of Accucode. Independent Contractor will prevent Independent Contractor Personnel from representing themselves as Accucode employees. 10.2 Customer Proprietary Network Information. To the extent Independent Contractor and Independent Contractor Personnel are provided or have access to Customer Proprietary Network Information (CPNI), those Independent Contractor Personnel are Accucode’s agents only for the purpose of complying with Accucode’s obligations regarding its customers' CPNI under the Communications Act of 1934, as amended, and related rules, regulations and FCC orders. Excepted from this agency relationship are: (1) Independent Contractors or Independent Contractor Personnel who market their own communications or communications-related services to Customers; (2) Independent Contractors or Independent Contractor Personnel who are independent collections agencies; and (3) Independent Contractors or Independent Contractor Personnel who receive CPNI from Accucode or Customers in a consulting or advisory capacity. As between Independent Contractor and Accucode, Independent Contractor Personnel will be considered independent contractors for all other purposes. This Section does not limit or otherwise change any of the parties’ other rights or duties under this Agreement. If directed by Accucode, Independent Contractor must provide training to all of its employees, contractors and agents who have access to this information to ensure compliance with the CPNI rules and Accucode’s practices and policies pertaining to CPNI. 10.3 Subcontracting. Unless otherwise approved by Accucode in writing, Independent Contractor will not subcontract any portion of services and will perform the services using Independent Contractor Employees. Notwithstanding Accucode’s approval of a Subcontractor, Independent Contractor will remain fully liable for the work performed and for the acts or omissions of any Subcontractor. If Accucode approves Independent Contractor’s use of Subcontractors, Independent Contractor will contractually require the Subcontractor to carry the same insurance required of the Independent Contractor, and agree to the same terms as those in these Terms. Independent Contractor must notify Accucode of Subcontractor’s use of CenturyLink former employees providing Services under this Agreement. 10.4 Safety and Health. Independent Contractor is solely responsible for the safety and health of Independent Contractor Personnel. Independent Contractor will (a) immediately report to Accucode any accidents, injuries or property damage, and (b) provide Accucode with copies of any safety, health or accident reports that it files with any third party. Accucode reserves the right to request additional documentation of Independent Contractor’s safety record and safety programs.
1. Indemnification and Insurance
11.1 IP Indemnification. Independent Contractor will indemnify and defend Accucode, and its respective customers, officers, directors, employees, and agents against any demand, suit, cause of action, liability, loss, or expense (including reasonable legal fees) incurred by Accucode or any indemnities related to any claim that Purchases, or the use of Purchases, infringe, violate, or misappropriate, either directly or indirectly, any intellectual property or proprietary right of any third party. If an injunction affecting the Purchases or Accucode’s use of any Purchases is issued or if Independent Contractor determines that an injunction affecting the Purchases or Accucode's use of any Purchases is likely to issue, Independent Contractor will promptly, at its expense, either (a) obtain the right for Accucode to use the Purchases, (b) replace or modify them with non-infringing Purchases of equivalent functionality, or (c) refund the amounts paid for the Purchases and reimburse Accucode for all reasonable expenses for removal and replacement of the Purchases. 11.2 General Indemnification. Independent Contractor will defend, indemnify and hold harmless Accucode, Accucode affiliates, and their respective customers, officers, directors, employees, and agents against any claim, demand, suit, cause of action, liability, loss, or expense (including reasonable legal fees) brought against any Accucode indemnitee resulting from (i) a breach of any warranty, representation, or any other obligation expressly set forth in these Terms; (ii) any act or omission of Independent Contractor under the Order, including injury to persons and loss of, or damage to, tangible and intangible property, (iii) any Purchases provided by Independent Contractor under or related to the Order, including without limitation product liability claims, or (iv) the inaccuracy of any warranty or representation made by Independent Contractor. 11.3 Insurance. Unless otherwise set forth on the front of the Order, throughout its performance under the Order, Independent Contractor will, at its own cost and expense, provide and maintain during the term of this Agreement, such insurance as required hereunder. The insurance coverage will be from a company, or companies, having an A.M. Best’s rating of A-VII or better and a license to do business in each state where Independent Contractor will perform work under this Agreement. Independent Contractor may obtain all insurance limits through any combination of primary and excess or umbrella liability insurance. Such insurance will provide a retroactive date prior to the date of the Agreement and either (a) continuous insurance coverage for a period of 2 years after termination of the Agreement, or (b) an extended reporting period of not less than 2 years after termination of the Agreement. Independent Contractor will furnish Accucode a certificate of insurance or other commercially acceptable evidence providing the required coverage. Independent Contractor will provide to Accucode a 30- day written notice of any cancellation of required insurance. Accucode may at any time require additional coverage and insurance limits greater than those required below. Independent Contractor agrees to maintain the following insurance, naming Accucode as an additional insured:
1. Workers’ Compensation insurance in accordance with statutory requirements applicable in each state which the work is to be performed and Employer's Liability or “Stop Gap” insurance with limits not less than $1,000,000 each accident;
1. Commercial General Liability insurance with limits not less than $1,000,000 per occurrence and $2,000,000 in the aggregate covering personal injury, bodily injury, property damage, products/completed operations, and independent contractors;
1. Commercial Automobile Liability insurance (including all owned, non-owned and hired vehicles) with limits not less than $1,000,000 combined single limit per occurrence covering bodily injury and property damage;
1. If Independent Contractor provides any consulting or professional services, design services or software development, installation, or support, either for Accucode use or for resale to Accucode customers, Errors & Omissions Liability Insurance covering acts, errors and omissions arising out of Independent Contractor’s operations or services with limits of not less than $1,000,000 per claim and, if applicable, coverage will include loss arising from unauthorized access or use that results in identity theft or fraud; privacy liability and security costs; and violation of state, federal or foreign statute or regulation requiring notice, not excluding HIPAA, or regulations pursuant to HIPAA.
1. If Independent Contractor has access to Customer accounts or Customer information, or if Independent Contractor accepts payment from third parties for Customer products and services, or if Independent Contractor has access to Accucode or Customer premises, Independent Contractor will also provide blanket Commercial Crime, Employee Dishonesty insurance covering all loss arising out of or in connection with any fraudulent act, dishonesty, disappearance and destruction, computer theft and funds transfer fraud with limits of not less than $1,000,000 each occurrence. This coverage will include 3rd Party or Client Coverage for the benefit of Accucode.
1. If Independent Contractor provides any (i) electrical work on systems above 400 volts or makes live connections, (ii) involves high pressure steam or refrigerant chiller/boiler work, (iii) work of any type in a central office, or (iv) excavation work, Independent Contractor will provide Umbrella or Excess Liability Insurance in an amount not less than $2,000,000 each occurrence.
1. If Independent Contractor has access to any Customer Critical Infrastructure Information, Personally Identifiable Information, or Customer confidential information, Independent Contractor will maintain Cyber Liability insurance, including Privacy Liability, and including loss arising from unauthorized access or use that results in identity theft or fraud, with limits of not less than $1,000,000 per claim.
1. Excess/Umbrella Liability Insurance: $2,000,000 each occurrence.
1. If Independent Contractor is providing storage for Customer-owned property, Independent Contractor will maintain "All-Risk" Property insurance on a replacement cost basis covering Customer property in Independent Contractor's care, custody or control. If Independent Contractor provides warehousing services, Independent Contractor will maintain Warehousemen's Legal Liability insurance covering loss or damage to property of others while acting as a warehouse operator or as a bailee with limits of not less than $1,000,000 per occurrence. Such insurance will be on a replacement cost basis and any loss or damage to Customer property under this Agreement will be adjusted with Accucode.
1. Work Product, Licensing
12.1 Ownership. Any Purchases, works of authorship, ideas, designs, creations, and deliverables purchased by Accucode under an Order that are specifically made for Accucode, will be considered a work made for hire for Accucode. Independent Contractor will promptly disclose and hereby assigns to Accucode any and all intellectual property generated, conceived, or developed under an Order including but not limited to all patent rights, copyright rights, mask work rights, trade secret rights, and other intellectual property and proprietary rights in the Purchases, works of authorship and deliverables developed by Independent Contractor under an Order. At no additional charge to Accucode, Independent Contractor will provide reasonable assistance to Accucode to secure intellectual property protection, including but not limited to, assistance in the preparation and filing of any patent applications, copyright registrations, and the execution of all applications, assignments or other instruments for perfection or protection of title. Independent Contractor will pay its employees any compensation due in connection with the assignment of any intellectual property or invention. Independent Contractor warrants to Accucode that Independent Contractor's employees are subject to agreements that will secure Accucode’s rights under this Section. Independent Contractor retains ownership of its previously developed items. If the Work Product includes previously developed items, Independent Contractor grants to Accucode a worldwide, unrestricted, fully paid-up, perpetual, irrevocable, transferable license to make, have made, use, market, import, distribute, copy, modify, prepare derivative works of, perform, display, disclose and sublicense such items. This license applies to third parties, including Accucode’s contractors, agents, Customers and the public, in connection with Accucode’s business. 12.2 Software Licensing; Previously Developed IP; Enhancements. For software, Documentation, and intellectual property provided under an Order but not specifically made for Accucode or owned by Accucode as work made for hire, Independent Contractor hereby grants to Accucode and its Affiliates a fully paid-up, worldwide, perpetual license to (a) install, display, perform, use, modify, reproduce, execute, distribute, and create derivative works of the software, on any one or more machines and at any one or more locations, and in any number of production and non-production instances; and (b) use all intellectual property rights necessary to use the Software as authorized in subparagraph (a). This license grant applies to and includes, without limitation, Accucode’s and Accucode’s Affiliates’ third party contractors and agents, and the right to use the software for and in connection with Transition Services (as defined below) and the provision of managed services, web hosting services, and application service provider and application infrastructure provider services by Accucode or its Affiliates to any non-affiliate. ”Transition Services” means services provided in connection with any acquisition or disposition of any Affiliate, business unit or asset(s) of Accucode or any Accucode Affiliate. Accucode and its Affiliates may allow third parties, including customers, contractors, or the public, to use the software, including in connection with data generated, tracked, collected, purchased, queried, input, or otherwise acquired by Accucode and/or any of its Affiliates. These Terms apply to all software provided by Independent Contractor regardless of the form of delivery and supersede all click wrap, shrink wrap, and other license terms included with the Software or in any Independent Contractor forms or Documentation. Independent Contractor will promptly deliver any enhancements, including modifications, revisions, corrections, updates to any software that Independent Contractor generally makes available to its customers, including all related Documentation. 12.3 Open-Source Software. If Independent Contractor incorporates, contributes, or combines any “open-source” software with any Purchases, with or without Accucode’s knowledge, Independent Contractor will, at its expense, comply, and ensure Accucode’s compliance, with the licensing requirements of the associated "open-source" software.
1. Limitation of Liability
Except for each party’s indemnification obligations and each party’s breach of any confidentiality requirements, neither party is liable to the other for consequential, incidental, indirect, punitive or special damages, including commercial loss or lost profits, directly or indirectly arising from the Order. Accucode’s liability for any claim of any kind arising out of or relating to the Order will not exceed the price of the Purchases giving rise to the claim.
1. Termination, Cancellation
14.1 Notice. Accucode may cancel Purchases under an Order with 5 days prior written notice. 14.2 Breach. Accucode may terminate the Order by written notice to Independent Contractor if Independent Contractor breaches the Order and fails to cure such breach to Accucode’s satisfaction within 10 days of written notice specifying the breach. 14.3 Termination for Convenience and for Cause. Accucode may, without liability (except for Purchases previously delivered and accepted), at any time terminate for convenience in whole or in part the Order, by written notice to Independent Contractor. If Independent Contractor materially breaches the Terms, the Order, or any document attached or incorporated into the Terms or Order, Accucode may, without liability (except for Purchases previously delivered and accepted), terminate in whole or in part the Order, by written notice to Independent Contractor, and Independent Contractor will be liable to Accucode for damages that Accucode incurs due to its breach, including the excess cost for substitute Purchases. Accucode may terminate this Agreement for cause if Independent Contractor or its employees, officers, and agents engage in any serious act of misconduct including but not limited to an act of dishonesty, theft or misappropriation of money or property, moral turpitude, insubordination, or any act injuring, abusing, or endangering others, intentional violations of law, rule, regulation, constitutional provision, which violation may, in the sole judgment of Accucode, reflect adversely upon Accucode. If Accucode terminates the Order, Accucode, in addition to any other rights provided under the Order, may require the Independent Contractor to transfer title and deliver to Accucode in the manner and to the extent directed by Accucode, any completed Purchases or other partially completed Purchases that the Independent Contractor has specifically produced or acquired for the terminated portion of the Order and for which Accucode has provided payment.14.4 Transition. Upon termination of the Order, Independent Contractor will promptly (a) document in detail the status of any Purchases in progress, (b) provide all assistance reasonably requested by Accucode in connection with the transition of services to Accucode and/or its agents, and (c) promptly refund or credit any pre-paid amounts. 14.5 Pre-Termination Obligations. Expiration or termination of the Order will not relieve either party from its obligations prior to expiration or termination.
1. Governing Law; Jurisdiction
THIS AGREEMENT AND THE LEGAL RELATIONS OF THE PARTIES HERETO SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
1. Dispute Resolution
16.1 Arbitration. Any controversy or claim arising out of or relating to this contract, or the breach or interpretation thereof, shall be settled by mandatory, binding arbitration in Colorado in accordance with the rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Service of process by Accucode in connection with any such dispute shall be binding on Independent Contractor if sent to Independent Contractor either by email or regular mail at the address specified in this Agreement or at such address as otherwise specified by Independent Contractor from time to time. Any claim by Independent Contractor against Accucode for any dispute relating to this Agreement shall be brought within one year after any such cause of action first arises.
1. International
17.1 FCPA. An Independent Contractor obligation under the Section entitled “Compliance with Laws and Policies”, includes the Foreign Corrupt Practices Act (“FCPA”), and all applicable anti-bribery and anti-corruption law of other nations, to the extent applicable to Independent Contractor, Independent Contractor personnel, or its or their performance of an Order. The FCPA prohibits Accucode from paying or offering anything of value to a government official or political party or candidate for the purpose of corrupting the exercise of an individual’s duties and attempting to influence that individual to provide business to or retain Accucode's business. Independent Contractor will not make or cause to be made any payment or offer of anything of value to any government official or political party or candidate without prior written approval from Accucode’s Law Department. Independent Contractor will provide all information requested by Accucode about the offer or payment. If requested by Accucode, Independent Contractor will sign a certification that Independent Contractor has, and will continue to, comply with all applicable laws, including the FCPA, and Accucode policies. If, in connection with the performance of this Agreement, anyone, including a government official or an agent thereof, requests or solicits Independent Contractor or any Independent Contractor Personnel to provide a payment or anything of value to influence an act or decision of the official or his/her government, or to secure an improper advantage, in order that Independent Contractor or Accucode obtain or retain business for itself or another, Independent Contractor and Independent Contractor Personnel will refuse to make such payment or provide such thing of value and will immediately report the incident to Accucode. 17.2 Export. Independent Contractor obligations under the section entitled “Compliance with Laws and Policies”, includes all U.S. and international import, export and anti-boycott laws and regulations, to the extent applicable to Independent Contractor, Independent Contractor personnel or its or their performance of an Order. Independent Contractor will determine, obtain, record, file and maintain, at its expense, all export and import documentation, franchises, authorizations, licenses, permits, reports, and statistics and pay all associated fees required for all exports or imports under an Order. All Purchases of exports or imports by Accucode under an Order are expressly conditioned upon Independent Contractor promptly obtaining and providing to Accucode all required franchises, permits, licenses, or authorizations.
1. Access
Accucode may permit Independent Contractor access to Accucode’s facilities and facilities of Accucode's Customers and vendors, as reasonably required for Independent Contractor's performance of the Order. Upon request, Independent Contractor will furnish the names, addresses, telephone numbers, job duties, key assignments and any other information regarding Independent Contractor personnel that Accucode deems necessary to safeguard its property and operations and its Customer Property and operations. Independent Contractor will comply with Accucode's access policies and procedures.
1. Compliance with Laws and Policies
Independent Contractor will, at its expense, obtain all permits and licenses, pay all fees, and comply with all federal, international, state and local laws, ordinances, rules, regulations, and orders applicable to Independent Contractor personnel and Independent Contractor’s performance of this Order. If Independent Contractor is providing services to any governmental agency or to Accucode for the benefit of a governmental agency, Independent Contractor and Independent Contractor Personnel will abide by the requirements of 41 CFR 60-1.4(a), 60300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans, or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, national origin, sexual orientation, or gender identity. Moreover, these regulations require that Independent Contractor and Independent Contractor Personnel take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability, sexual orientation, or gender identity.
1. Independent Contractor Employees
Independent Contractor will provide only Independent Contractor Employees who are legally authorized to work in the United States. Independent Contractor will not knowingly employ or contract with an illegal immigrant to perform work under any agreement with Accucode or enter into a contract with a Subcontractor that knowingly employs or contracts with an illegal immigrant. Independent Contractor shall comply with all reasonable requests made in the course of an investigation by Accucode or a governmental agency.
1. Prevailing Wages
Independent Contractor will pay its employees “prevailing wages” as defined by federal and state laws in the state and location where work is performed. Upon Accucode’s request, Independent Contractor will provide written certification of its compliance with its prevailing wage obligations.
1. Former Employment with CenturyLink
With respect to any Independent Contractor or Independent Contractor Personnel who were employed by CenturyLink or its Affiliates, regardless of whether Independent Contractor solicited such Independent Contractor Personnel, Independent Contractor will provide ten (10) days advance written notice to Accucode prior to allowing such Independent Contractor Personnel to begin providing services under this Agreement. If Accucode objects to the assignment, such Independent Contractor Personnel may not perform services. In addition, Independent Contractor shall provide on an annual basis, no later than February 15th of the following year, a report to Accucode of all former CenturyLink employees it has hired, the dates of hire, whether such individual provides Services to CenturyLink and, if so, whether exclusively or also to other clients of Independent Contractor.
1. Independent Contractor Diversity/MWDVBE Subcontracting Plan
Independent Contractor shall, in the performance of its obligations under this Agreement, make good faith and commercially reasonable efforts to identify and award business to, and/or increase business awarded to, qualified firms owned and controlled by ethnic minorities, persons with disabilities, women or service disabled veterans as well as S.B.A. certified HUBZone and 8a qualified businesses. This requirement is only applicable to services performed or products purchased within the United States and its territories. Independent Contractor shall report any activity on MWDVBE utilization on or before the effective date of the contract and annually thereafter, 30 days after calendar year end or January 30th of every year. “MWDVBE” means Minority-owned, Women-owned, and Disabled Veteran-owned Business Enterprises.
1. IRS Reporting
If Independent Contractor Employees or agents will be working on an Accucode assignment, Independent Contractor will maintain all information required for IRS reporting purposes, including the total number of hours spent by each of its employees and agents: (a) performing work in connection with the Agreement; and (b) performing any other work for Accucode or its Affiliates. If any of Independent Contractor Employees or agents works 1,000 or more hours for Accucode during any calendar year, Independent Contractor will provide Accucode with the name and social security number or such other identifying information as the parties may agree upon for purposes of this reporting of each such individual prior to March 1 of the year following the calendar year in which the work was performed.
1. Resale
25.1 This section applies unless the Order expressly states that Accucode is not permitted to resell the Purchases to end customers. 25.2 Independent Contractor grants to Accucode, during the term of the Order, a worldwide, irrevocable, transferable, non-exclusive right and license to: (i) advertise, promote, market, resell, sublicense, and distribute the Purchases and to provide related services to Accucode customers; and (ii) to use, reproduce, and distribute the Documentation in connection with Accucode's exercise of the rights granted in this Section. 25.3 Accucode may affix a label on the Purchases or Documentation depicting Accucode’s logo, trademarks, name, and address and identifying Accucode as the service agent for the Purchases, if applicable, provided that Accucode does not obscure Independent Contractor’s trademarks. 25.4 The representations and warranties in these Terms and any additional manufacturer’s warranties apply to Accucode and Accucode’s Customers. 25.5 Independent Contractor agrees that during the term of the Agreement and for a period of two (2) year after termination or expiration of the Agreement, it will not, directly or indirectly, through the use of Customer information obtained in connection with the provision of the Agreement, solicit, divert or take, or attempt to divert or take away, the Customer, the business or accounts of Accucode.
1. Remedies
No remedy specified in these Terms will limit Accucode’s other rights and remedies arising in connection with the Order, at law or in equity.
1. Drug Testing and Background Check Requirements
Independent Contractor will comply with Accucode’s Drug Testing and Background Check Requirements which are found in Addendum A below and are incorporated herein by this reference. Independent Contractor will select Independent Contractor Personnel in accordance with appropriate immigration laws and upon request will provide compliance certificates to Accucode within 10 days of request.
1. Environmental
Independent Contractor will use commercially reasonable efforts, as applicable, to provide, or use when providing Purchases: (a) environmentally-preferable, energy-efficient services and products (based on best in class guidelines); (b) services that eliminate or reduce the generation of hazardous waste/materials and the need for special material processing; (c) services and products that promote the use of nonhazardous, recovered, and recycled materials. Independent Contractor will use commercially reasonable efforts to incorporate this Section into its subcontracts that support Purchases provided to Accucode.
1. Environmental, Health, and Safety Services
If the Purchase is related to an environmental, health, or safety services, i.e., waste, tank testing, asbestos, phase I/II, industrial hygiene, etc., Independent Contractor is subject to the Environmental Services Terms & Conditions found in Addendum B below.
1. Notification of Potential Hazardous Materials
If Independent Contractor will be working in buildings where they will disturb Asbestos or other hazardous materials, Independent Contractor must notify Accucode immediately before any work begins.
1. Records and Audits
Independent Contractor will maintain complete and accurate records of all charges associated with the Order, in accordance with generally accepted accounting principles, for 72 months from the date of its termination or expiration. Accucode may inspect and retain copies of such records on reasonable notice.
1. Information Security
Independent Contractor will comply with Accucode’s Information Security Requirements and Privacy Requirements in Addendum D.
1. Assignment and Delegation
Independent Contractor will not assign or delegate its rights or obligations under the Order, in whole or in part, without the prior written consent of Accucode. Accucode may assign its rights under the Order, in whole or in part, without the consent of Independent Contractor: (a) to any Affiliates of Accucode, (b) in connection with any merger, consolidation, reorganization, or sale of all or any part of its business or assets; or (c) as Accucode deems appropriate in connection with any regulatory requirements.
1. Notices
Any notices required or permitted under the Order will be sent to the addresses of the parties stated on the Order. Notice will be deemed given: (a) on the 1st day after deposit with an overnight courier, charges prepaid; (b) as of the day of receipt, if sent via first class U.S. Mail, charges prepaid, return receipt requested; and (c) as of the day of receipt, if hand delivered.
1. Advertising, Publicity
Except as provided in these Terms, neither party will use the other party’s names, marks, codes, drawings, or specifications in any advertising, press release, promotional effort, or publicity of any kind without the other’s prior written permission.
1. Non-Solicitation/Non-Hire: Employees
During the period of the Agreement and for a period of two (2) years after termination or expiration of the Agreement, Independent Contractor and Accucode jointly agree that neither party will, directly or indirectly, without the other party’s prior written consent, discuss possible employment opportunities with an employee of the other party. If an employee then currently employed by the other party initiates contact concerning employment opportunities, the party approached shall notify the other party and shall obtain the other party’s written consent to discuss employment opportunities with the employee. In case of breach of the foregoing obligation, the non-breaching party may terminate the Agreement immediately by written notice, and pursue all legal and equitable remedies available to it.
1. Waiver
Any waiver by either party of any rights hereunder or of a breach of any provision of the Order will not constitute a waiver of any other breach of that or any other provision of the Order. Any waiver must be in writing.
1. Interpretation
The term “including” in these Terms means by way of example, not limitation. Headings and subheadings used in these Terms are for convenience only, and have no substantive meaning. These Terms will not be construed against the drafting party. Any ambiguities in the language of this Agreement are not to be construed or resolved against either party based on the fact that such party was principally responsible for drafting this Agreement.
1. Non-exclusive
The Order is non-exclusive, and Accucode does not make any commitment for or guarantee any minimum or maximum amount of Purchases by Accucode.
1. Force Majeure
Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delays or failures arise by any reason beyond its reasonable control, including, but not limited to, any act of God, any acts of the common enemy, war, terrorism, sabotage, embargo, the elements, earthquakes, floods, fires, epidemics, riots, supply chain failure, or any act or failure to act by another party. The affected party shall promptly inform and consult with the other party as to any of the above causes, which in its judgment may or could be the cause of a delay in the performance of this Agreement.
1. Severability
The determination that any provision of these Terms is invalid or unenforceable will not invalidate these Terms, and these Terms will be construed and performed as if such invalid or unenforceable provision was omitted insofar as the primary purpose of the Order is not frustrated.
1. Time of Essence
Time is of the essence with respect to Independent Contractor’s obligations hereunder.
1. No Independent Contractor Dependence
Accucode is not responsible for Independent Contractor’s dependence on revenues from sales to Accucode. Independent Contractor will release, hold harmless, and indemnify Accucode from any and all claims and liabilities relating to Independent Contractor’s dependence on Accucode or Accucode’s termination of the Order.
1. Business Associate Agreement
When Independent Contractor is engaged to provide services used by Accucode when Accucode acts as a Business Associate to a customer who is subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Independent Contractor is subject to the Business Associate Agreement which is found in Addendum C below and incorporated by reference into these Procurement Standard Terms and Conditions.
1. Survival
The Sections of the Terms entitled “Representations and Warranties”; “Confidential Information”; “Indemnification and Insurance”; “Work Product, Licensing”; “Limitation of Liability”, and “Dispute Resolution” and all others that by their sense and context are intended to survive the expiration of the Order will survive.
1. Number and Captions
As used herein, the singular shall include the plural, and the plural the singular. All captions used herein are intended solely for convenience of reference and shall in no way limit or explain any of the provisions of the Agreement.
1. Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. Electronically transmitted signature pages shall be deemed originals for all purposes. INDEPENDENT CONTRACTOR ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND THAT THIS AGREEMENT BINDS AND GOVERNS THE PARTIES. Addendum A: Independent Contractor Drug Testing and Background Check Requirements
1. Requirements
To the extent permitted by law, Independent Contractor will submit to and/or perform thorough screening and selection of Independent Contractor Personnel who will be performing Services for Accucode, including reasonable background checks, and will confirm the legal status of Independent Contractor Personnel to work in the United States or the country in which they will be employed. Independent Contractor shall meet the requirements of the Fair Credit Reporting Act and any regulations issued thereunder for any assignments within the United States, and with any other applicable state, provincial, federal, or country laws. All required drug testing and background checks shall be completed, investigated, and meet all acceptable criteria before Independent Contractor or Independent Contractor Personnel are placed or continue on Company assignment or customer property. If Independent Contractor or Independent Contractor Personnel are already assigned to Company or customer property, Company may agree to allow Independent Contractor a maximum of five (5) days from the start of this Agreement in order for Independent Contractor to provide required background checks status. Independent Contractor will not be required to conduct new or updated background checks if Independent Contractor has previously conducted reasonable background checks on Independent Contractor Personnel that meet the requirements specified in (A) through (E) below, except as required by Customer requirements or law.
1. Background checks will include, at a minimum: (i) identity verification/Social Security Number trace; and (ii) a criminal history check consisting of an inquiry of official government record repositories for any federal, state, and local felony or misdemeanor adjudication (e.g., conviction, deferred judgment, nolo contendere, or finding of criminal liability by a court of competent jurisdiction) and/or pending criminal charges for all areas of residence/employment over the last seven (7) years, or longer if commercially feasible and the information is available through public records.
1. In addition, if Independent Contractor or Independent Contractor Personnel will have: (i) unescorted access to Accucode or Customer facilities; (ii) access to sensitive Accucode or Customer data, such as CPI, CII, CPNI, Intellectual Property, or Sensitive PII; or (iii) access to Accucode or Customer internal computer systems, networks, or databases, Independent Contractor will conduct the following background checks in addition to the checks specified in (a) above:
1. 1. (a) education verification (if post-secondary degree required for the position); (b) employment history (last 3 positions or last 5 years if with same employer); (c) references (if any of items (a) or (b) cannot be completed); and (d) a five (5) panel drug screen conducted by a properly accredited or certified laboratory.
1. In addition, if Independent Contractor or Independent Contractor Personnel will have physical access to Accucode customers or prospective customers, Independent Contractor will conduct the following background check, as applicable, in addition to the checks specified in (A) and (B) above:
1. 1. a search of the National Sex Offender registry.
1. In addition, if Independent Contractor or Independent Contractor Personnel will have access to: (i) Accucode or Customer data centers; or (ii) Accucode Customer equipment or data hosted in those data centers, Independent Contractor will conduct the following background check, as applicable, in addition to the checks specified in (A), (B), and/or (C) above:
1. 1. a search of the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) Specially Designated Nationals (SDN) List.
1. In addition, if Services performed by Independent Contractor or Independent Contractor Personnel will involve the use of a motor vehicle: (i) owned by Accucode; or (ii) by Independent Contractor or Independent Contractor Personnel while on Company business, Independent Contractor will conduct the following background check, as applicable, in addition to the checks specified in (A), (B), (C) and/or (D) above:
1. 1. A Motor Vehicle Records (MVR) check.
1. International Personnel
If Independent Contractor Personnel are based outside of the U.S. and all of the required checks described above are not available or legally permitted within the Independent Contractor’s country of operation, Independent Contractor will notify Accucode of this fact and make every effort to utilize Independent Contractor Personnel who could reasonably meet these standards. These efforts should include alternative screening to include verification of additional references, previous employment, education, identity, residence, and additional screening database checks if available.
1. Adjudication
Independent Contractor will consider all of the information provided from a background check, or MVR when applicable, when determining if the Independent Contractor Personnel will provide services for Accucode. Independent Contractor will not utilize or promptly remove from providing Services any Independent Contractor Personnel who:
1. has had a positive or positive dilute drug test result within the last twelve (12) months;
1. is not authorized to work in the United States or the country in which they will be employed by the Independent Contractor;
1. has falsified, misrepresented or omitted information required to be disclosed or provided any misleading statement in the application or resume;
1. has been convicted (felony or misdemeanor) within the past 7 years, or longer if the crime was particularly egregious, of a crime: involving fraud, theft, or dishonesty; otherwise related to assignment duties; of violence; or which otherwise indicates a risk to Accucode property, the safety of Accucode employees or Customers, or the general public;
1. is subject to any pending criminal charge or arrest warrant, if (i) the matters alleged in the charge or warrant would disqualify the candidate based on guidelines listed in section (d) above, and (ii) the Independent Contractor’s investigation or inquiry indicates that the matters as charged are likely to be true;
1. for whom the Independent Contractor has any reliable information which suggests that such person is unqualified, dishonest, untrustworthy, unreliable, or has any history of violence;
1. will perform Services for Accucode that involve the use of a motor vehicle and: does not currently possess a valid driver’s license; has had any driving related suspensions or revocations of a driver’s license within the last five (5) years; has any DWI, OWI, or DUI convictions within the last five (5) years; or whose MVR check otherwise indicates a risk to Accucode property, the safety of Accucode employees or Customers, or the general public.
1. Compliance
At Accucode’s request, Independent Contractor will audit its compliance with all of the above requirements, and will, within fifteen (15) business days of Accucode’s request, deliver a written certification to Accucode confirming that Independent Contractor has been and is in compliance with these requirements. Independent Contractor must maintain security/criminal investigation results for review by Accucode upon request. Details of actual results will remain confidential. At Accucode’s request, Independent Contractor will furnish documentation supporting compliance, including the U.S. Citizenship and Immigration Services Form I-9 (Employment Eligibility Verification form) for any Independent Contractor Personnel.
1. Removal of Personnel
Independent Contractor will remove Independent Contractor Personnel promptly from providing Services to Accucode when Accucode requests the removal for any lawful reason. Accucode is not obligated to pay for Services provided by the Independent Contractor Personnel following Accucode’s request for his or her removal. Accucode is not obligated to pay for any costs associated with replacing Independent Contractor Personnel. Addendum B: Environmental Services Terms and Conditions
1. Definitions
1.1 "Hazardous Materials" means any hazardous, radioactive, or toxic substance, material, or waste defined or regulated under any environmental, health, or safety law, including without limitation, asbestos, and those hazardous materials, substances, and wastes defined by the enabling statutes, or regulations, orders, or rules of the United States Department of Transportation ("DOT"), Occupational Safety and Health Administration ("OSHA"), Environmental Protection Agency ("EPA"), or the Nuclear Regulatory Commission. 1.2 “Services” means any work performed by or for Independent Contractor in connection with the Order. Modifications to the Services may be made by a written change Order agreed to in writing by Accucode and Independent Contractor. 1.3 “Termination Assistance Services” means the termination or expiration assistance requested by Accucode to allow the Services to continue without interruption or adverse effect and to facilitate the orderly transfer of the Services to Accucode or its designee.
1. Invoices, Payments
2.1 Retain Payments. Accucode reserves the right to retain ten percent (10%) of payments otherwise due until final acceptance of the Services. 2.2 Lien Waiver, Bond. Accucode reserves the right, before making any payments, or at any time during the progress of the Services, to require Independent Contractor and its Subcontractors to furnish to Accucode a lien waiver (in a form acceptable to Accucode) that all claims, liens, and causes of action, if any, for the payment of wages or salaries or the payment of charges for labor, materials, tools, machinery, or supplies have been satisfied, released, or settled. Where Independent Contractor fails to furnish a lien waiver, the amount of such claims, liens, and causes of action may be retained from any monies due Independent Contractor until the waiver is furnished. Accucode may require the posting of a mechanic's or materialmen's lien bond relating to performance of the Services.
1. Additional Representations and Warranties
3.1 General. Independent Contractor represents and warrants that the Services will be consistent with industry standards, and sufficient for the stated purpose and that Independent Contractor will supervise and direct the performance of the Services using Independent Contractor’s best skill and attention. All right, title, and interest in any materials Independent Contractor acquires from Accucode for disposal or for transit shall transfer to Independent Contractor upon receipt by Independent Contractor. 3.2 Environmental. Independent Contractor will use its best efforts, wherever applicable to the Order, to provide, or use when providing the Services: (a) environmentally-preferable, energy-efficient Services and products (based on EPA issued guidelines); (b) Services that eliminate or reduce the generation of hazardous waste/materials and the need for special material processing; (c) Services and products that promote the use of non-hazardous, recovered, and recycled materials. Independent Contractor will incorporate this section into its subcontracts that support the Services provided to Accucode under the Order. 3.3 Mechanic’s Liens. Independent Contractor covenants and agrees to keep Accucode and Customer premises free from all mechanics' liens and claims of liens, and all other liabilities, liens, claims, and demands on account of work by or on behalf of Independent Contractor. If any such lien, at any time, is filed against Accucode or Customer premises, Independent Contractor will cause such lien to be discharged of record within 10 days after the filing of such lien, except that if Independent Contractor desires to contest such lien, it will furnish Accucode, within such ten (10) day period, security reasonably satisfactory to Accucode of at least 150% of the amount of the claim, plus estimated costs and interest or comply with such statutory procedures as may be available to release the lien.
1. Reports
Independent Contractor will submit, on a monthly basis, or other frequency specified by Accucode, reports containing such information as may be reasonably requested by Accucode, including but not limited to a progress report for the milestones specified in the Order and cumulative amounts billed to Accucode under all Orders.
1. Subcontractors
5.1 Subcontractor Approval. Independent Contractor will furnish in writing to Accucode the names of each Subcontractor, vendor, or Independent Contractor expected to supply equipment, material, services, supervision, consultation, or labor in connection with the Services (each, a “Subcontractor”) for each principal portion of the Services. Accucode will notify Independent Contractor on or before ten (10) days after receipt of such names whether Accucode objects to any such proposed Subcontractor. If Accucode does not respond, Accucode will be deemed to have consented to such Subcontractor. Criteria for objection include, without limitation, the Subcontractor’s financial condition, its experience, the character and number of its employees, the condition of its equipment, and its past performance of similar work. 5.2 General. Independent Contractor will not contract with any proposed Subcontractor to whom Accucode has timely objected and will submit a substitute to whom Accucode has no reasonable objection. Any acceptance or rejection of a proposed Subcontractor by Accucode will not relieve Independent Contractor of responsibility for the Services. Independent Contractor will not change a Subcontractor previously identified by Independent Contractor without the permission of Accucode. Accucode will have the right, but not the obligation, to review all bids, submittals, or other proposals made to Independent Contractor by any Subcontractor, whether successful, responsive, or utilized in the performance of the Services.
1. Additional Indemnification
Independent Contractor will also indemnify, defend and hold harmless Accucode (including its officers, directors, employees, and agents) and its affiliates against any loss, cost, expense, or liability (including without limitation attorneys’ fees and costs and awarded damages) arising in whole or in part from the acts or omissions of Independent Contractor, Independent Contractor Personnel, its Subcontractors or their respective officers, employees, agents, or affiliates, including but not limited to environmental claims, property damage, personal injury, and failure to comply with laws, except to the extent any such claim results from the gross negligence or willful misconduct of the indemnified parties.
1. Premises Visits
Accucode will be permitted access to Independent Contractor’s premises. Accucode will coordinate such access with the Independent Contractor’s designated representative, allowing reasonable notice prior to visiting such premise.
1. Hazardous Materials and Safety
8.1 Hazardous Materials Laws and Regulations. Independent Contractor will comply with all applicable federal, state and local laws, ordinances, rules, regulations, court orders, and governmental or regulatory agency order governing Hazardous Materials or safety, which may include state and federal motor carrier safety regulations, the DOT Hazardous Materials regulations and any regulations governing conveyance, packaging, marking, identifications, storage, handling, and/or disposition of Hazardous Materials, or governing any accidents or incidents in connection with such activities involving Hazardous Materials, as amended or supplemented. Independent Contractor will furnish Accucode with “Material Safety Data Sheets” that comply with laws and other environmental compliance data requested by Accucode. 8.2 Additional Indemnification. Independent Contractor will immediately remedy any noncompliance and indemnify, defend, and hold harmless Accucode, (including its officers, directors, employees, contractors, and agents), its affiliates, and customers, from any liabilities including, but not limited to, attorneys’ fees, costs of defense, clean up costs, response costs, costs of corrective action, costs of financial assurance, and/or natural resource damages, that may arise, or be imposed on, be incurred by, be asserted against or be sustained by Accucode by reason of Independent Contractor’s failure to comply with this section.
1. Additional Insurance Requirements
9.1 General. Independent Contractor may obtain all required insurance limits through any combination of primary and excess or umbrella liability insurance. 9.2 Commercial General Liability Insurance. The limits of insurance for Commercial General Liability Insurance under the Section titled “Insurance” in the General Terms and Conditions are replaced with the following: Each Occurrence $1,000,000General Aggregate Limit $5,000,000Products-Completed Operations Limit $5,000,000Personal and Advertising Injury Limit $1,000,000 9.3 Pollution Liability Insurance. Independent Contractor will maintain Pollution Liability insurance covering liability arising out of Independent Contractor’s operations performed under the Order, if the insurance listed in Section 9.2 above does not cover Independent Contractor’s operations to clean up, remove, contain, and treat pollutants. The limits of insurance will not be less than $1,000,000 each occurrence and $2,000,000 aggregate. If Independent Contractor will transport or store hazardous material, the policy will include pollution coverage related to the transportation and long term storage of hazardous material. If the policy is a claims made form, such insurance will provide a retroactive date prior to the start of Services under the Order and an extended claims reporting period of not less than 3 years after the expiration or termination of the Order. 9.4 Asbestos Abatement Coverage. In the event that contractor will dispose, remove, or remediate asbestos, asbestos abatement insurance shall be required with limits of $1,000,000 per claim and $2,000,000 aggregate. In the event that contractor will test for or monitor asbestos particles, asbestos abatement consultants professional liability insurance shall be required with limits of $1,000,000 per claim and $2,000,000 aggregate. 9.5 Errors & Omissions Liability Insurance. If the Services require Independent Contractor to test, analyze, or monitor for pollution conditions, Independent Contractor will maintain Errors & Omissions liability insurance covering acts, errors, and omissions arising out of Independent Contractor’s operations or services, with limits of not less than $1,000,000 per occurrence, and including coverage for contractual liability with respect to liability assumed by Independent Contractor hereunder. Such insurance will provide a retroactive date prior to the start of Services under the Order and an extended reporting period of not less than 3 years after expiration or termination of the Order.
1. Methods of Procedure
When directed by Accucode, Independent Contractor will prepare and submit approved methods of procedure (“MOP”) for Services which pose a potential risk to the operation of Accucode or Customer premises. The MOP will include detailed Service processes, time frames, and responsibilities to ensure limitation of risk. Independent Contractor will comply with the approved MOP and will cause Independent Contractor personnel and Subcontractors and their respective employees and agents to comply with established MOP.
1. Emergency Contact List
Independent Contractor will maintain and provide to Accucode an emergency contact list with names and phone numbers for both business and non-business hours. In the event Accucode experiences an emergency situation impacting service or safety, Independent Contractor will respond and will cause Independent Contractor Personnel and Subcontractors and their respective employees and agents to respond in an expedited manner to assist Accucode in recovering from emergency conditions.
1. Termination Assistance Services
Independent Contractor will provide Accucode or its designee such Termination Assistance Services as may be requested by Accucode or its designee upon the termination or expiration of this Agreement. At Accucode’s discretion, such Termination Assistance Services may commence as early as six (6) months prior to the expiration or termination of this Agreement and may continue for up to six (6) months after the effective date of the expiration or termination of the Term. Upon written notice to Independent Contractor, Accucode has the option to extend such Termination Assistance Services for a reasonable period of time. Independent Contractor will cooperate in good faith in all transition related matters. The Termination Assistance Services will be performed in accordance with all Specifications applicable to the Services being transitioned. In addition to any other items requested by Accucode or its designee on Accucode’s behalf, the Termination Assistance Services will require Independent Contractor to: (i) catalog all Services then being provided, including software and tools used to provide the Services; (ii) update all support Documentation, including a description of Services by Accucode application; and (iii) provide a complete and up to date copy of all applicable policy and procedures manuals. In the event that Accucode terminates this Agreement for its convenience, Accucode will pay Independent Contractor’s rates identified in the applicable Schedule under this Agreement for such efforts.
1. Service Trials
Accucode may evaluate existing or new Services of Independent Contractor without charge.
1. Notice
Whenever any notice, consent, approval, request, demand, or authorization and the like (collectively, “Notice”) is required or permitted under this Agreement, the same must be in writing. Notice must be delivered in person, by certified mail, return receipt requested, postage prepaid or by a nationally recognized overnight delivery service to the parties at the addresses listed in the signature block of the Procurement Standard Terms and Conditions agreement above.
1. Survival
The following provisions of these Environmental Services Terms and Conditions regarding “Additional Representations and Warranties”, “Hazardous Materials and Safety”; and “Additional Indemnification” and all others that by their sense and context are intended to survive the expiration of the Order will survive.
1. Conflict
In the event of a conflict between these Specific Terms and Conditions and the Purchase Order Terms and Conditions, these Special Terms and Conditions shall control. Addendum C: Business Associate Agreement This Business Associate Agreement (“BAA”) applies to services provided to, for or on behalf of Accucode where Independent Contractor acts in the capacity of a Business Associate in the course of providing or performing the services. Accucode shall mean Accucode, Inc. and any of its affiliates. Independent Contractor acts as a Business Associate when providing Services described in 45 CFR §160.103 including, without limitation, Services where Independent Contractor has access to, creates, receives, maintains, and/or transmits PHI (“Services”). When Independent Contractor acts in the capacity of a Business Associate, Independent Contractor shall be referred to as Business Associate. As a condition precedent to providing the Services and in the course thereof, Business Associate agrees to fully comply with HIPAA (including as it relates to security and breach notification) and the terms of this BAA.
1. Definitions
1.1 “ARRA” shall have the meaning set forth in the American Recovery and Reinvestment Act of 2009. 1.2 “Breach” shall have the meaning set forth in 45 CFR § 164.402. 1.3 “Breach Notification Rule” shall have the meaning set forth in the “Standards for Breach Notification for Unsecured Protected Health Information,” 45 CFR Part 164, Subpart D, as may be revised from time to time by the Secretary. 1.4 “Business Associate” shall have the meaning set forth in 45 CFR § 160.103. 1.5 “Covered Entity” shall have the meaning set forth in 45 C.F.R. § 160.103. 1.6 “Disclose” or “Disclosure” shall have the meaning set forth in 45 C.F.R. § 160.103. 1.7 “HIPAA” shall have the meaning set forth in the “Health Insurance Portability and Accountability Act of 1996, as amended and the associated regulations and the American Recovery and Reinvestment Act of 2009 (P.L. 111-5) and the associated regulations (“ARRA” also known as the “HITECH Act”).” 1.8 “HITECH Act” shall have the meaning set forth in the Health Information Technology for Economic and Clinical Health Act, as incorporated in the ARRA. 1.9 “Individual” shall have the meaning set forth in the Privacy Rule, including, but not limited to, 45 C.F.R. § 160.103, and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. § 164.502(g). “Individually Identifiable Health Information” shall have the same meaning as the term is given in 45 C.F.R. § 160.103. 1.10 “Notice of Privacy Practices” shall mean the Covered Entity’s legally required notice of privacy practices for Protected HealthInformation required by 45 C.F.R. § 164.520. 1.11 “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information set forth in 45 C.F.R. Parts160 and 164 (Subparts A and E). 1.12 “Protected Health Information” or “PHI” shall have the meaning set forth in 45 C.F.R. § 160.103. 1.13 “Secretary” shall mean the Secretary of the United States Department of Health and Human Services. 1.14 “Security Incident” shall have the meaning set forth in 45 C.F.R. § 164.304. 1.15 “Security Rule” shall mean the Security Standards set forth in 45 C.F.R. Part 160 164. 1.16 “Unsecured Protected Health Information” shall have the meaning set forth in § 13402(h)1 of the ARRA. 1.17 “Use” shall have the meaning set forth in 45 C.F.R. § 160.103. 1.18 Any capitalized term not expressly defined herein shall have the meaning set forth in HIPAA, ARRA, HITECH, Security Rule, and PrivacyRule.
1. Obligations and Activities of Independent Contractor When Acting As a Business Associate
2.1 Status of Independent Contractor. Independent Contractor acknowledges and agrees that it is a Business Associate of, for or on behalf of Accucode where Independent Contractor acts in the capacity of a Business Associate in the course of providing or performing the Services. 2.2 Business Associate agrees not to Use or Disclose PHI in violation of this BAA or applicable law. Business Associate further agrees that it will access only the minimum amount of PHI necessary to perform the Services. 2.3 Business Associate agrees, at its expense, to (i) use reasonable safeguards to prevent Use or Disclosure of the PHI, including Electronic PHI, in contravention of this BAA; (ii) comply with Subpart C of 45 CFR Part 164 with respect to Electronic PHI; (iii) implement administrative, physical, and technical safeguards and security measures that reasonably and appropriately prevent Use or Disclosure of PHI other than as provided for by this BAA, and (iv) use all reasonable safeguards to prevent any casual or incidental viewing of PHI by Business Associate in the normal course of providing Services, including without limitation, the use of encryption while data is in transit and/or residing on servers or storage systems. 2.4 Business Associate shall encrypt any and all Protected Health Information in a manner consistent with guidelines established by the Secretary, except where the provision of the Services requires Protected Health Information to be unencrypted in which case the PHI will remain unencrypted only as long as necessary to provide the Services. 2.5 Business Associate agrees to report to Accucode any Use or Disclosure of PHI not provided for by this BAA of which it becomes aware. Business Associate will make a written report to Accucode as soon as possible but not later than five (5) calendar days after Business Associate learns of such unauthorized Use or Disclosure, unless a shorter time is reasonably requested by Accucode or the Covered Entity. Business Associate’s written report will provide sufficient information to inform Accucode of the nature of the unauthorized Use or Disclosure, the PHI used or disclosed, and what corrective action Business Associate has or will take to prevent future similar unauthorized Use or Disclosure. 2.6 Business Associate shall comply with the Breach Notification Rule, including reporting, following discovery and without unreasonable delay, but in no event later than five (5) calendar days or a shorter time if reasonably requested by Accucode or the Covered Entity. Business Associate shall cooperate with Accucode in investigating the Breach, performing the appropriate risk assessment, and in all other respects meeting Accucode’s or Covered Entity’s obligations under the HITECH Act and any other security breach notification laws at Business Associate’s expense. Any such report shall include the identification (if known or reasonably able to be determined) of each individual whose Unsecured Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, Used, or Disclosed during such Breach. 2.7 Business Associate agrees to ensure that any of its agents, including a Subcontractor, that may have access to PHI received from, created or received by Business Associate, or maintained for or on behalf of Accucode or Covered Entity, agrees in writing to substantially the same restrictions, conditions, and obligations to implement reasonable and appropriate safeguards to protect PHI or Electronic PHI. 2.8 Business Associate agrees to make internal practices, books, personnel, and records, including policies, procedures and PHI, relating to the Use and Disclosure of PHI received from, or created or received by Business Associate for or on behalf of Accucode or Covered Entity, available to Accucode, the Accucode Customer, Covered Entity or Secretary, in a time and manner as reasonably requested by or designated by the Secretary, for purposes of the Secretary determining Accucode’s or Covered Entity’s compliance with the HIPPA rules, including without limitation, the Privacy Rule and/or Security Rule. 2.9 Business Associate agrees to document and to provide to Accucode, in a time and manner reasonably requested by Accucode, such Disclosures of PHI and information related to such Disclosures as would be required for Accucode or Covered Entity to respond to a request by an Individual for an accounting of Disclosures of PHI in accordance with 45 CFR §164.528. 2.10 Business Associate agrees to provide access to PHI to Accucode or Covered Entity at the request of Accucode as may be required to meet the requirements under 45 CFR § 164.524 and the HITECH Act. Under no circumstances shall Business Associate accept or respond to requests for access to PHI made by Individuals; Business Associate shall notify Accucode within five (5) calendar days of any request for PHI by an Individual. 2.11 Restriction Requests on Uses and Disclosures. Business Associate shall not agree to a restriction on the Use or Disclosure of Protected Information pursuant to 45 CFR § 164.522(a) or Section 13405(a) of the HITECH Act without first consulting Accucode Business Associate is not obligated to implement any restriction, if such restriction would hinder Health Care Operations or the Services Business Associate provides to Accucode or Covered Entity, unless such restriction would otherwise be required by Section 13405(a) of the HITECH Act. 2.12 Permitted Uses and Disclosures of PHI.
1. Permitted Uses. Business Associate may Use or Disclose Protected Health Information to perform such functions and activities as are necessary to perform the Services for, or on behalf of, Accucode or Covered Entity provided that such Use or Disclosure would not violate the Privacy Rule and HITECH.
1. Except as otherwise limited in this BAA, Business Associate may disclose Protected Health Information for Business Associate’s proper management, administration, and legal responsibilities provided that Disclosures are required or permitted by law, including but not limited to, to perform the Services for or on behalf of Accucode.
1. Except as otherwise limited in this BAA, Business Associate may use Protected Health Information to provide Data Aggregation services to Accucode or Covered Entity as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).
1. Obligations of Accucode
3.1 Accucode or Covered Entity shall notify Business Associate as soon as possible in writing of any changes in, or revocation of, permission by an Individual to Use or Disclose PHI, to the extent that such changes may affect the Services. 3.2 Accucode or Covered Entity shall notify Business Associate as soon as possible in writing of any restriction to the Use or Disclosure of Protected Health Information that Accucode or Covered Entity has agreed to in accordance with 45 C.F.R. § 164.522 (“Use or Disclosure Restrictions”), to the extent that such restriction may affect Business Associate’s Use or Disclosure of Protected Health Information. 3.3 Permissible Requests by Accucode or Covered Entity. Accucode or Covered Entity shall not request, and Business Associate shall not be obligated to Use or Disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule or Security Rule if done by Accucode or Covered Entity, unless otherwise noted in this BAA.
1. Amendment and Termination
4.1 Amendment. Business Associate agrees to take such action as is necessary to amend this BAA from time to time as Accucode reasonably determines necessary to comply with HIPAA, or any other applicable law, rule or regulation. 4.2 Term. The Term of this BAA shall be effective upon the provision of Service to Accucode or Covered Entity that involves Business Associate acting in the capacity of a Business Associate as such term is defined in the Rules and shall terminate when: (i) the Agreement terminates including, without limitation, any transition services period; and (ii) all of the Protected Health Information provided by Accucode or Covered Entity to Business Associate, or created, received, maintained, or transmitted by Business Associate for or on behalf of Accucode or Covered Entity, is destroyed or returned to Accucode or Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section. 4.3 Termination for Cause. Upon Accucode’s knowledge of a material breach by Business Associate, Accucode shall either:
1. Provide an opportunity for Business Associate to cure the breach or end the breach and terminate this BAA and the Services if Business Associate does not cure the breach or end the violation within the time specified by Accucode;
1. Immediately terminate this BAA and the Services if Business Associate has breached a material term of this BAA and cure is not possible; or;
1. If neither termination nor cure is feasible, Accucode shall report the violation to the Covered Entity or at the request of the Covered Entity, to the Secretary but provide advance written notice of such intention to the Business Associate.
4.4 Effect of Termination.
1. Except as provided in paragraph (b) below of this Subsection, upon termination of this BAA for any reason, upon mutual agreement of the parties, Business Associate shall return or destroy all Protected Health Information received from Accucode or Covered Entity, or created or received by Business Associate for or on behalf of Accucode or Covered Entity. This provision shall also apply to Protected Health Information that is in the possession of Subcontractors or agents of Business Associate. Business Associate shall retain no copies of the Protected Health Information.
1. In the event that Business Associate determines that returning or destroying the Protected Health Information is unfeasible, Business Associate shall provide to Accucode written notification of the conditions that make return or destruction unfeasible. Business Associate shall extend the protections of this BAA to such Protected Health Information and limit further Uses and Disclosures of such Protected Health Information to those purposes that make the return or destruction unfeasible, for so long as Business Associate maintains such Protected Health Information.
4.5 Cure of Non-material Breach. Accucode shall provide an opportunity for Business Associate to cure a non-material breach within a time mutually agreeable to the parties. 4.6 Covered Entity’s termination of its agreement with Accucode for whatever reason shall constitute cause for Accucode to terminate this BAA and the Services. 4.7 Survival. Provisions that contemplate a right or obligation that would be due or performed after expiration or termination of this BAA, shall survive the expiration or termination.
1. Other Agreements
Accucode and Business Associate acknowledge and affirm that this BAA is in no way intended to address or cover all aspects of the relationship of Accucode and Business Associate. Rather, this BAA deals only with those matters that are specifically addressed herein. Further, except as may be agreed upon by the parties for a specific Covered Entity, this BAA supersedes any prior business associate agreements entered into by Business Associate and Accucode (or any predecessor to Accucode), and shall apply to all PHI existing as of the effective date of this BAA or created or received thereafter while this BAA is in effect.
1. Notices
Notices provided under the BAA must be in writing and delivered by (a) certified mail, return receipt requested, (b) hand delivered, (c) e-mail, or (d) delivery by a reputable overnight carrier service [in the case of delivery by e-mail, the notice must be followed by a copy of the notice being delivered by a means provided in (a), (b) or (d)]. The Notice will be deemed given on the day the notice is received. In the case of notice by e-mail, the notice is deemed received at the local time of the receiving machine. Notices must be delivered to the addresses listed in the signature block of the Procurement Standard Terms and Conditions Agreement.
1. Regulatory References
A reference in this BAA to a section in the Privacy Rule or the Security Rule means the section in the respective regulations, as amended and in effect at the relevant time. All references to “C.F.R.” are to the Code of Federal Regulations as amended and in effect at the relevant time.
1. Indemnification
Business Associate shall indemnify, defend, and hold Accucode, its affiliates, contractors, and Customers harmless from any and all liability or claims arising out of or related to Business Associate’s actions or inactions under this BAA. This obligation is not limited by any limitation of liability set forth in an agreement with Accucode.
1. Severability
If any provision or part of this BAA is found to be invalid, the remaining provisions of this BAA shall remain in full force and effect.
1. Construction
The use of the singular form of a word herein shall be deemed to include the plural form, and vice versa, as appropriate. All references to “Sections” contained herein refer to Sections of this BAA, unless otherwise stated.
1. Interpretation
The provisions of this BAA shall be interpreted in a manner intended to achieve compliance with HIPAA. Whenever this BAA uses the term “including” followed by a specific item or items, or there is a passage having a similar effect, such passages of this BAA shall be construed as if the phrase “without limitation” followed such term (or otherwise applied to such passage in a manner that avoids limitations on its breadth of application). Where the term “and/or” is used in this BAA, the provision that includes the term shall have the meaning the provision would have if “and” replaced “and/or,” but it shall also have the meaning the provision would have if “or” replaced “and/or.” It is hereby expressly understood and agreed that this BAA was negotiated by both parties each of whom was represented by counsel of its choosing. Accordingly, the parties hereby agree that any and all rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this BAA.
1. No Third-Party Beneficiaries
Nothing express or implied in this BAA is intended to confer, and nothing herein shall confer, upon any person other than the parties hereto any rights, remedies, obligations, or liabilities whatsoever.
1. Successors and Assigns
This BAA shall inure to the benefit of, and be binding upon, the successors and assigns of Accucode and Business Associate. However, this BAA is not assignable by any party without the prior written consent of the other parties, which shall not be unreasonably withheld, except that Accucode may assign or transfer this BAA to any entity owned or under common control of Accucode.
1. Applicable Law
The provisions of this BAA shall be construed and administered to, and its validity and enforceability determined under HIPAA. To the extent that HIPAA is not applicable in a particular circumstance, the laws of the State of Delaware, irrespective of its choice of law principles, shall govern. Addendum D: Information Security and Privacy Requirements If these Information Security and Privacy Requirements ("Requirements") conflict with the terms of any Agreement between the parties, the provisions providing the greatest protections to Confidential Information will prevail. Capitalized terms used, but not defined in these Requirements will have the same meanings as in the Agreement.
1. Definitions. Customer Confidential Information may include Customer critical infrastructure information (CII), Customer proprietary network information (CPNI) or Customer or employee personally-identifiable information (PII). CII is defined as Confidential Information about Customer network architecture and key network assets, such as the location and capability of central offices, network points of presence and other critical network sites, and network elements and equipment within them, and includes any information which Customer identifies as critical infrastructure information. CPNI is as defined at 47 USC § 222(h) and includes any Confidential Information which Customer identifies as CPNI. Customer proprietary information, including CPNI, is protected by federal statute (47 USC § 222) and Federal Communications Commission Rules. PII is Confidential Information that may be used to identify an individual or entity, such as a first and last name, home or other physical address, phone number or other contact information, e-mail address and electronic transaction information. “Sensitive PII” means Customer Confidential Information that involves racial or ethnic origin, political opinions, religious or philosophical beliefs, union membership, health and financial matters, sexual preferences, Social Security Numbers, credit cards and any other account numbers, or other Confidential Information which Customer identifies as Sensitive PII, whether the information pertains to consumer, business or employment activities. Customer will identify its CII, CPNI, PII, or Sensitive PII if reasonably requested by Independent Contractor in writing.
“Security Standards” means commercially reasonable security features in all material hardware and software systems and platforms that Independent Contractor uses to access, process and/or store Customer Confidential Information, in alignment with ISO/IEC 27002:2005, as that standard or its successor standards may be amended.
1. To protect Customer Confidential Information from unauthorized use, including disclosure, loss or alteration, Independent Contractor will, at all times that it accesses, stores or processes Customer Confidential Information: (i) meet the Security Standards; and (ii) inventory and review Security Standards before accepting Customer Confidential Information. Independent Contractor will maintain written safety and facility procedures, data security procedures and other safeguards against the destruction, loss, unauthorized access or alteration of Customer Confidential Information, and such procedures will reflect best practices within Independent Contractor’s industry and will include appropriate employee training, as well as the posting of a privacy policy on Independent Contractor’s website. Independent Contractor agrees to cooperate in good faith to modify its business practices to accommodate any future changes in the parties’ hardware, software, or services, or in legal or industry standards regarding the treatment of Customer Confidential Information that may affect the reasonableness of the protections under this Agreement.
1. If Independent Contractor stores, processes, or transmits payment card information on behalf of Customer, Independent Contractor will comply with Payment Card Industry Data Security Standards (PCI-DSS), as amended or updated from time to time. Independent Contractor will validate compliance with Payment Card Industry Data Security Standards, as needed, to permit Accucode to meet its compliance obligations, and will provide Accucode annually with a PCI-DSS compliance certificate signed by an officer of Independent Contractor with oversight responsibility. If Independent Contractor stores or processes Customer financial account information (e.g., bank or credit union accounts), it will protect that information in accordance with the National Automated Clearing House Association’s NACHA/ACH Rules and Operating Guidelines. Independent Contractor will provide Accucode annually with a NACHA/ACH compliance certificate, signed by an officer of Independent Contractor with oversight responsibility.
1. Upon Accucode’s reasonable request, Independent Contractor will provide information to Accucode to enable Accucode to determine compliance with these Requirements. As part of Accucode’s assessment of Independent Contractor’s internal control structure, Accucode may require Independent Contractor to, without limitation, answer security questionnaires or conduct scans of servers, databases and other network hardware. If Independent Contractor accesses, stores or processes Customer Confidential Information, Accucode reserves the right to require that an annual audit be conducted with respect to Independent Contractor’s compliance. Upon Accucode’s request, the audit will include a data-flow chart or narrative. Independent Contractor will provide Accucode with the results of any audit, upon Accucode’s written request. Regardless of any Accucode request, however, Independent Contractor will advise Accucode of any material negative finding or conclusion of the audit and the corrective or remediation steps being taken to address such negative finding or conclusion of the audit and the corrective or remediation steps being taken to address such negative finding or conclusion.
1. Independent Contractor will promptly (but in no event later than twenty four (24) hours after discovery) inform Accucode in writing on becoming aware of any known or suspected compromises, unauthorized access, misappropriation, misuse or release of Customer Confidential Information. In any such instance, Independent Contractor will give specific information on what Confidential Information was accessed and any remediation efforts undertaken, to the extent known and will thereafter provide regular and timely updates throughout the ongoing investigation and remediation. The parties will work cooperatively to secure the return of any Confidential Information removed or copied. Accucode’s Law Department must be consulted regarding the framework of any investigation, including aspects that should be covered by the attorney-client privilege. Unless otherwise agreed in writing by the parties at the time of the incident, the party experiencing the incident will, at its own expense, conduct an investigation of the incident and provide periodic reports to the other party on the status of the investigation. When Independent Contractor experiences the incident, upon reasonable request of Accucode, Independent Contractor may be required to hire an independent, third party forensic or security firm to assist with this investigation or remediation effort. At the appropriate time, the party experiencing the incident will advise the other party of the final results of the investigation. Each party will work cooperatively with the other party on remediation and law enforcement activities, as appropriate. In the event of the unauthorized disclosure or use of CPNI or PII, Independent Contractor’s indemnity obligation in this Agreement will include repeated or related expenses arising from each disclosure and use, including, but not limited to, advertising, notifications, and services (such as the cost of credit monitoring).
1. On a periodic basis, but in no event more than twice in any 12-month period, Accucode may, upon 10 days’ notice, perform a security assessment (on any system that transmits, collects, processes, or stores (including caching) its Confidential Information) to determine Independent Contractor’s compliance with the Security Standards. If Accucode has a reasonable basis to believe that Independent Contractor has breached or is likely to breach the Security Standards, Accucode may, upon five (5) days’ notice, perform a vulnerability assessment, which assessment will be in addition to any assessment in the ordinary course.
1. At Accucode’s reasonable request, Independent Contractor will promptly cooperate with Accucode to develop a plan to protect Customer Confidential Information from failures or attacks on the Security Standards, which plan will include prioritization of recovery efforts, identification of and implementation plans for alternative data centers or other storage sites and backup capabilities.
1. Independent Contractor will not store Customer Data on Independent Contractor servers or workstations beyond what is necessary to perform the Independent Contractor business functions. Independent Contractor will not use portable computing and storage devices such as laptops, personal digital assistants, diskettes, cell phones, USB flash drives, CDs, and portable disk drives (collectively referred to as “Mobile Devices”) with respect to Customer Confidential Information absent a business need to perform under this Agreement. If so needed, Mobile Devices that contain Customer Confidential Information will interact with or store Customer Confidential Information only in an encrypted form using a strong cryptographic protocol with highly-regarded, secure protocols consistent with commercially reasonable practices in Independent Contractor’s business sector. Independent Contractor will securely erase Customer Confidential Information from all media, using current commercially-reasonable erasure means, before Independent Contractor provides any third party with media on which Customer Confidential Information has been captured or stored.
1. In the event Customer Confidential Information will be transmitted (i) over non-US soil, or (ii) over the public Internet, the Confidential Information must be encrypted using highly-regarded, secure transport encryption protocols, consistent with commercially reasonable practices in the delivery of services within Independent Contractor’s business sector. Independent Contractor will not access from, transfer or disclose to or use any of Customer CPNI, PII, or CII at any location outside the United States or entities that are not incorporated or organized in the United States without Customer’s prior written consent.
Addendum E: Physical Security Administration Standards for Independent Contractors
1. Overview
To provide an appropriate level of protection for Customer information, equipment and personnel, certain physical security requirements must be met in the day-to-day administration of Independent Contractor security programs. The purpose of this addendum is to set forth minimum physical security requirements Accucode’s Independent Contractors are expected to maintain or observe to provide an appropriate level of protection for Customer information, equipment and/or personnel. Exceptions to any item listed in this standard must be requested from, and approved by, Accucode. Exceptions to these standards can be requested by submitting the request in writing to Accucode.
1. Documentation
Independent Contractors must formally document Independent Contractor programs, methods, processes and/or procedures designed to meet the requirements of this addendum and will make the documentation available for review by Accucode personnel upon request.
1. Security Reporting
Security incidents that impact, have the potential to impact, or suggest a possible future risk to Customer information, equipment or personnel must be documented and reported to Accucode. Examples of the types of incidents to be reported are:
- Assault
- Bomb Threat
- Burglary
- Computer Hacking
- Embezzlement
- Fraud
- Misconduct by Employees, Vendors or Contractors
- Property Damage
- Robbery
- Suspicious Activities, People or Situations
- Missing Property or Theft
- Threats
These examples are not intended to constitute an exhaustive listing. Independent Contractor is expected to apply appropriate judgment and recognize and report other incidents that impact, or may impact, Customer information, equipment or personnel.
1. Responsibilities When Working in Customer Facilities
Independent Contractors working in Customer facilities have certain security-related responsibilities. They are required to:
- Protect and safeguard the Customer property, personnel and information in their control;
- Ensure doors and other entry points they use close and lock properly;
- Report malfunctioning locks, doors and other security devices;
- Report suspected or known breaches of security;
- Report suspected or known damage, destruction, misappropriation or misuse of Customer property, or information;
- Ensure their visitors, or other individuals under their control, comply with security rules, policies and procedures, and do not pose a risk to people, property or information; and
- Comply with all postings or notices located at Customer premises regarding safety, security or weapons
Independent Contractors must ensure their employees working at Customer facilities comply with these requirements, and must implement these same requirements for their employees, contractors, and vendors at any facility housing Customer information, equipment and/or personnel. As part of their security-related responsibilities, Independent Contractor employees, contractors, and vendors working in Customer facilities, shall not:
- Carry weapons or ammunition onto Customer premises or use or carry weapons while performing services or attending Customer-sponsored activities;
- A clear desk policy must be enforced. Documents that contain Customer Data must be kept secured (e.g. locked office or file cabinet) when not in use;
- Attempt to circumvent security rules, policies and procedures;
- Attempt to circumvent, disable or defeat locks or other security devices or systems;
- Attempt to enter facilities or areas of facilities they are not authorized to enter;
- Loan or share access/identification badges, access codes, keys, combinations and other access devices/methods assigned to them;
- Use their access/identification badges, access codes, keys and other access devices/methods assigned to them to grant facility or area access to unauthorized individuals; or
- Otherwise permit unauthorized personnel to enter facilities or restricted areas of facilities
Independent Contractors must ensure their employees working at Customer facilities comply with these requirements, and must implement these same requirements for their employees, contractors, and vendors at any facility housing Customer information, equipment and/or personnel.
1. Access Control
5.1 General. Independent Contractors must establish access control processes and procedures for all Independent Contractor facilities containing Customer information, personnel and/or equipment. Independent Contractors’ processes and procedures must provide Customer an appropriate level of assurance that only authorized personnel have access to Customer information and/or equipment and, at a minimum, must meet the requirements for access control that are set forth in this document. Physically secure perimeters and external entry points must be suitably protected against unauthorized access (e.g. barriers such as walls, card controlled entry gates). Access to all locations must be limited to Independent Contractor Personnel and authorized visitors only. Reception areas must be manned or have other means to control physical access. 5.2 Access Cards/Identification Badges. Where Independent Contractors use access cards and/or identification badges to control access to their facilities, the following is required:
- Independent Contractors must only provide access cards and/or identification badges to individuals who are authorized and have a frequent and recurring need to access areas containing Customer information, personnel and/or equipment;
- Independent Contractors must retrieve access cards and identification badges on a timely basis when they are no longer required by the individuals to whom they were issued;
- Independent Contractors must reprogram accesses when the individuals to whom they were issued are no longer authorized to access areas containing Customer information, personnel and/or equipment;
- Independent Contractors must review and validate access lists for areas containing Customer information, personnel and/or equipment at least quarterly to ensure individuals on those lists should continue to be authorized; and
- The loss or theft of access cards/identification badges must be reported and acted upon immediately
5.3 Lost or Forgotten Access/Identification Cards. Where Independent Contractors use access cards and/or identification badges to control access to its facilities, Independent Contractors must establish appropriate procedures to ensure that individuals who claim they have lost or forgotten issued access/identification cards are authorized prior to granting access. The procedures must include verifying:
- Employment status of employees through their supervisor or Human Resources;
- The status of non-employees through contact with an appropriate management official; and
- Identity through either government-issued photo identification or visual recognition
If temporary access cards are issued, Independent Contractors must implement a process to document the card’s issuance and to retrieve and/or deactivate the temporary card promptly when the individual using it no longer needs it to provide services to Customer.
1. Visitor Processing and Control
6.1 General. Visitors are individuals who have not been granted unescorted access privileges through a key, code, combination or an access card programmed to provide access to the facility/area in question. Independent Contractor Employees not assigned to a facility or area shall, therefore, be treated as visitors for that facility or area. Independent Contractors must establish the following procedures for the documentation and control of visitors to Independent Contractor facilities containing Customer information, personnel and/or equipment:
- Verify the identity of all visitors through government-issued photo identification (e.g., driver’s license, passport, etc.) or an Independent Contractor-issued photo identification badge;
- Maintain a record of all visitors, to include full name, organization, date/time of arrival, date/time of departure, and individual visited;
- Have the visitor wear a distinctive and highly visible “visitor badge” while in the facility; and
- Escort visitors at all times while in areas containing Customer information, personnel and/or equipment
- Independent Contractors must retain visitor registration documentation and records for a period of one (1) year and provide it to Accucode for review upon request
1. Access Devices
7.1 Usage. If Independent Contractor or Independent Contractor Personnel are issued access devices (e.g., access cards, identification badges, keys, lock codes, etc.) for Customer facilities, Independent Contractor and Independent Contractor Personnel are required to:
- Wear identification badges/access cards in a visible manner at all times while on Customer property;
- Immediately report the loss or compromise of an access device to Accucode; and
- Return the access devices when no longer needed, or upon request
If Independent Contractor or Independent Contractor Personnel are issued access devices (e.g., access cards, identification badges, keys, lock codes, etc.) for Customer facilities, Independent Contractor and Independent Contractor Personnel are not permitted to:
- Loan the devices to other people;
- Use the devices to grant access to other people;
- Enter Customer facilities, or areas of facilities, except in conjunction with their Customer-related duties;
- Enter Customer facilities, or areas of facilities, for the purpose of solicitation of business or for the purpose of developing contacts with the intent of solicitation of business at a future date; or
- Engage in any other activities that would constitute abuse of their access privileges
1. Lock and Key Programs
8.1 General. If building locks are used to protect Customer information, personnel and/or equipment, Independent Contractors must establish an effective lock and key program that complies with this section. 8.2 Key Records. Independent Contractors’ key records must document the following:
1. a) Key identifier code;
2. b) Date of issue;
3. c) Date of return;
4. d) Name of the individual to whom the key was issued;
5. e) Type of key (control, master, operating, etc.); and
6. f) Status of the key (i.e., issued, lost, returned, destroyed, or held in inventory)
8.3 Spare Equipment Storage. Independent Contractors must establish an appropriate level of protection of spare keys, key blanks, key manufacturing equipment, key records, etc., to ensure access only by authorized individuals. 8.4 Employee Awareness. Independent Contractors must make its employees aware of the requirement to safeguard keys issued to them, the fact that keys shall not be loaned to others, that they must immediately report lost or stolen keys, and that keys must be returned upon request or when no longer needed for assigned duties. 8.5 Lost or Stolen Keys. Independent Contractors must conduct risk assessments for all lost or stolen keys. When a risk assessment indicates the lost or stolen key creates vulnerability, Independent Contractors must take appropriate steps to mitigate the vulnerability as it pertains to Customer information, personnel and/or equipment. 8.6 Pushbutton Locks. Accucode, at its discretion, shall prohibit the use of push-button type locks for the protection of some areas containing Customer information, personnel and/or equipment. Where push-button type locks are employed, Independent Contractor must ensure:
- Codes are distributed only to authorized individuals;
- Individuals to whom the codes are issued understand they must safeguard them and shall not provide them to others;
- Codes are changed on a quarterly basis; and
- Codes are changed immediately if there is suspicion the code has been compromised or an individual to whom the code was issued is no longer authorized access to the area protected by the lock.
1. Intrusion Detection Systems
Where Independent Contractor employs an intrusion detection system to protect Customer information, personnel and/or equipment:
- Alarm signals must terminate in a monitoring location that is staffed 24x7;
- The alarm system, or individual sensors, shall not be masked;
- Defined response procedures must be established for all alarm types; and
- There must be a human response to all alarms for alarm analysis purposes
- Accucode may require the use of intrusion alarms in certain situations.
1. Photography and Tours
Photography within areas containing Customer information, personnel and/or equipment, and tours of such areas, are not permitted without the written permission of Accucode.
1. Physical Security Assessments
It is the responsibility of Accucode to conduct physical security assessments of facilities housing Customer information, equipment, personnel and/or operations for the purpose of identifying risks to Accucode. Independent Contractors will cooperate with those assessments by providing timely access to pertinent facilities, areas, personnel, systems, equipment and documentation.
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