EMERSON COLLEGE

CONSULTANT AND HONORARIUM POLICY - DRAFT

Emerson College Policy # XXXXX

Effective Date of this Draft Policy is: October 1, 2019

Policy Statement

From time to time, Emerson College will need to contract consultants to provide specialized and/or temporary services. It is Emerson’s legal responsibility to demonstrate that consultants are properly classified, vetted, selected and paid. This policy outlines the process for classifying, engaging and paying consultants.  

Reason for the Policy

To provide guidance around defining, classifying, engaging and paying consultants.

Responsible Officer

The Vice President of Administration and Finance is responsible for oversight and implementation of this policy.

Definitions

Employee: Under IRS, every individual who performs services subject to the will and control of Emerson, both what and how it is done, is an employee. It does not matter that Emerson allows considerable discretion and freedom of action, as long as Emerson controls both the method and the result of the services. If an employer-employee relationship exists, it does not matter what the parties call the relationship. It does not matter how the pay is measured, how the individual is paid, if they are full-time or part-time, or what the payments are called.

Consultant: An individual who is self-employed, possess a specialized skill, knowledge or credentials that are not readily available among College faculty and staff and engaged for a discrete period of time to accomplish specific tasks/services or give advice for Emerson, of which Emerson directs only the result of the work and not how the services are performed.

Research Consultation: Research consultation may be defined as consultation that is done as part of a scientific investigation or scholarly pursuit aimed at the production of new knowledge. An expert has specialized knowledge directly related to the science and scope of a project. Research consultation costs are typically charged to grant funds, but are not a subcontractor to a grant. Some examples of activities in this category include reports, presentations, collaborative writing, data interpretation and/or reviews by experts not employed at Emerson College. Under IRS guidelines, paid research consultation is considered to be an independent contractor type payment. The NIH Grants Policy Statement defines the difference between Consultant Services and Consortium Agreements and Contracts under grants, and does not distinguish between consultants and research consultation. Please contact Office of Research and Creative Scholarship if you have any questions concerning research consultation provided by individuals versus subcontract agreements between Emerson College and another institution.

Firms: A firm that pays taxes for its employees (e.g. issues W-4s for U.S. nationals) and is contracted to provide services for Emerson.

Honorarium: An honorarium is an academic term used to describe a “token” payment for services usually in the form of an academic presentation. It is a payment primarily intended to confer distinction or to symbolize respect, esteem or admiration. It is paid at the discretion of the college, is not a fee charged by the person being paid, and is not contractual in nature. An honorarium is typically a one-time payment. Payments to teach a course or give a lecture are not honorariums unless they are token payments. Honorarium payments are not generally allowable on a federal grant or contract unless it has been specifically approved in advance by the sponsor. 

 

Statements of Elaboration of the Policy

I.  Applicability

External consultants may be retained to provide specialized services for business process modernization, computer system development and implementation, strategic planning and other non-routine management initiatives. They may also be engaged to provide professional services in connection with the college’s capital, research and other academic and administrative programs.

This policy is not applicable to subcontracts or sub-grants when Emerson College has been awarded a grant or contract and a substantial portion of the programmatic work will be performed by an investigator(s) at another institution. Contact the Office of Research and Creative Scholarship for specific procedures applicable to subcontractors funded by sponsored research awards.

Generally speaking, those services that are used for the general operation of the college should be procured through Procurement Services and are not affected by this policy. Examples include but are not limited to goods and services that are restricted from the Procurement Card, such as construction contracts and related goods and services, service and maintenance contracts, printing services and mail houses. However, any individual or firm providing consulting services to the college are covered by this policy. The distinction should be made between consultant services and goods and related services. As an example, if a department is purchasing a large amount of paper stock for a specific mailing or needs to hire a printer to print the mailing, Procurement Services procedures should be followed. If, however, a department wants to hire an individual or a firm to design the layout for a specific mailing this policy and related procedures should be followed.

II.  Classification Review and Process

If an employer-employee relationship exists, the employer ordinarily must withhold income taxes from any wage payments. Employees of Emerson College that are already paid via the college HR/Payroll System or who have terminated employment at Emerson within the current calendar year may not be paid as a consultant even if additional compensation is appropriate. Please consult with the Office of Human Resources regarding additional payments made to existing or former employees prior to making any agreements with current or former Emerson employees.

Emerson College must ensure compliance with IRS, California and Massachusetts guidelines, and U.S. Department of Labor (DOL) regarding the classification of consultants. Therefore, pre-approval of consultant status must be obtained from the Office of Procurement Services.   In order to do this, an Independent Contractor Questionnaire (Appendix A) must be completed by the requesting department and submitted to Procurement Services. Procurement Services will review and if it meets the requirements will sign off on the form and return it to the initiating department.   If there are questions or concerns about the proper classification, Procurement Services will consult with the Office of Human Resources.

Once the classification is approved as a consultant, the requesting department should initiate a requisition in Workday for any engagement/agreement that equals $600 or more in the calendar year, and attach a copy of the signed questionnaire. No commitment to the consultant should be made until this form is approved, and a contract has been signed. Please refer to Appendix B for federal and state guidelines on determining whether or not an individual should be classified as an employee or an independent contractor. Please allow seven business days for the review to be completed.

All honoraria regardless of funding source, and research consultation that is paid by grant funds costing $600 or less, does not require completion of the Independent Contractor Questionnaire. 

III.  College Approved Contract

Departments are not authorized to commit to any consultant until the Independent Contractor Questionnaire is approved and either a pre-approved contract or the standard Emerson contract is signed by the consultant prior to the start of the work. No other written agreements may be used or signed by anyone other than those individuals authorized to approve contracts. Alterations or amendments to a college approved contract require approval by Procurement Services in consultation with the VP and General Counsel before the consultant may begin the work regardless of the amount of the contract. (See Contract Approval Policy) Please see Appendix C for the Emerson approved contract templates. Please note: all honorarium payments regardless of funding source and research consultation payments charged to grants that are $600 or less do not require the use of a contract but do require written sponsor prior approval. Contact the Office of Research and Creative Scholarship for assistance.

IV.  Tax Information

As a withholding agent, Emerson College is required to withhold from all payments or distributions of California source income greater than $1,500 made to a non-resident payee (including U.S. non-resident aliens, regardless of U.S. federal tax status) during the calendar year, which includes payments made to California non-resident independent contractors who provide services in California. Such payments or distributions are subject to California withholding at a rate of 7 percent, and are reported on Franchise Tax Board (FTB) Forms 592 and 592-B.

The college does not withhold federal, state, or FICA taxes from payments to consultants or honorariums for work performed on the Boston campus.

For all U.S. Citizens and resident aliens, a valid Social Security Number or Individual Tax Identification Number (ITIN) is required before any payment can be processed. They must complete a Form W-9. The W-9 must be attached to the initial Non-Employee Payment Form before any payment will be issued to the individual. Both consultant and honorarium payments for personal and professional services are reportable to the IRS if payments exceed $600 in any calendar year. Expense reimbursements to non-employees are not reportable when an itemized list of expenses is provided and substantiated with original receipts (See Travel and Business Expense Policy). 

V.  Foreign Individuals

All offers of reimbursements, travel payments or honoraria to foreign visitors are contingent on the visitor entering the United States on a visa that allows the visitor to receive payments. The general rule is that foreign visitors can only receive compensation from the sponsoring institution. Contact the Office of Internationalization and Global Engagement for assistance in obtaining an Emerson College sponsored visa for a foreign visitor. In lieu of a W-9, all non-resident aliens must complete a W- BEN Form and a 9-5-6 Rule Certification Form if here on a B-1, B-2, WB or WT visa. Payments to non- resident aliens are subject to 30% tax withholding unless the individual is eligible to claim a treaty benefit. To receive these benefits, the non-resident alien must have a valid US tax identification number and complete additional IRS forms. Please contact Accounts Payable to obtain all the necessary forms or if you have any questions concerning payment to an individual who is on a visa before committing to any agreements. Without these additional forms, Accounts Payable may not be able to issue a payment to the individual.  For more information, please see Payments to Foreign Nationals Policy.

VI.  Travel Advances

In general, consultants and persons receiving honorarium payments will not be issued a travel advance. In the case of an honorarium, departments can prepay any travel expenses on their behalf or reimburse them after the fact. In order to be reimbursed, expenses should be itemized separately on their invoice.

VII.  Insurance Coverage and Benefits

The college does not provide insurance coverage or employee benefits to Consultants.   

VIII.  General Procedures

1. Department determines the need to hire a consultant.
2. Department identifies appropriate individual (or firm) to provide services. If required, Sole Source Justification or bid documentation is coordinated/sent to Procurement Services (see Procurement Policy) in workday via the Create Requisition form.
3. Department completes Independent Contractor Questionnaire.
4. Procurement Services reviews independent contractor status and notifies department to either submit requisition (approved as a consultant), and attach a fully executed contract and W-9, or contact Human Resources to hire individual.
5. If consultant did NOT make changes to the pre-approved contract, contract may be signed and work is begun.
6. If changes were made, Procurement Services, in consultation with the VP and General Counsel, must review and approve before the contract is signed and work is started. Contact Procurement Services to initiate contract review.
7. Consultant submits invoice directly to AP if a PO was required and references the PO number on all invoices.
8. For honoraria under $600, No PO is required. Department creates “Supplier Invoice Request” and attaches invoice .
9. Payment is made.

 

Cross References to Related Policies:

Signature Authorization Policy       

Contract Approval Policy

Travel and Business Expense Policy

Procurement Policy - Draft

Payments to Foreign Nationals Policy link TBD

Key Office to Contact Regarding this Policy and its Implementation

Questions regarding the policy should be directed to the Associate Vice President for Financial Business Services or the Sr. Associate Vice President for Human Resources.

Links to Procedures and Forms: N/A

Date of Initial Policy: 

____/s/ M. Lee Pelton__

 

Appendix A

Independent Contractor Questionnaire

This checklist is to be used to determine how to properly classify a worker (employee versus independent contractor), considering the “totality of the circumstances” based on the following categories: Behavioral Control, Financial Control and Relationship of the Parties per IRS Revenue Ruling 87-41 (Note: Massachusetts and California have similar requirements). This checklist needs to be completed by the Emerson College employee seeking to engage the individual. If the individual is a current or former Emerson College employee, Emerson College Human Resources must be consulted before proceeding. Please attach this completed form to a Supplier Request in Workday for review and approval by Procurement Services before engaging the consultant.

Section I. BEHAVORIAL CONTROL; Does Emerson College have the right to direct and to control the work performed by the worker?	Yes	No
Does the individual currently work for Emerson or will the individual be performing services similar in capacity or under the same administration and control as to when they were an employee?  (Same department/same supervisor)
Is the individual required to comply with instructions from Emerson as to when, where and how the work is to be completed?
Does Emerson require training on how to perform the task?
Does the individual hire or supervise Emerson employees?
Does the individual set their own hours?
Does the individual perform the work off site?
Does Emerson determine the sequence of tasks required to complete the work?
Doe the individual have the option to submit written or oral reports to Emerson?
Section II FINANCIAL CONTROL; Does Emerson have a right to direct or control the financial and business aspects of the worker’s job?	Yes	No
Does the individual receive payments of regular amounts at set intervals rather than paid by the job?
Does Emerson pay for business and/or travel expenses for the individual?
Does Emerson supply the equipment, supplies or materials necessary to provide the service?
Does the individual have an ownership and/or financial interest in own business?
Will the individual recognize a profit or loss based on good or bad management decisions?
Section III RELATIONSHIP; The type of relationship depends upon how the worker and Emerson perceive their interaction with one another.	Yes	No
Does the individual work only for Emerson?
Is the individual an Emerson student?
Has the individual had or will they have a long term relationship with Emerson?
Could the individual incur legal liability if the contract terms are not met?
Can the individual be fired at any time by Emerson?
Does the individual advertise their services to other entities?
Does the individual render services which can usually stand alone and are not integrated into business operations?
For assistance, does the individual hire own employees?

A misclassification may result in taxes, interest and penalties being assessed by the IRS or the state. If this happens, department will be responsible for these costs.

Period of Performance:  _____________________________________Department___________________________

Person Completing:       _______________________________________________________Date_______________

 

Appendix B

 

Massachusetts Department of Revenue

 

The Three Prong Test

Prong One: Freedom from Control

The first prong of M.G.L. c. 149, s. 148B provides that the individual must be “free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact” in order for the individual to be an independent contractor. The burden is upon the employer to demonstrate that the services at issue are performed free from its control or direction. An employment contract or job description indicating that an individual is free from supervisory direction or control is insufficient by itself to classify an individual as an independent contractor under the Law. To be free from an employer’s direction and control, a worker’s activities and duties should actually be carried out with minimal instruction. For example, an independent contractor completes the job using his or her own approach with little direction and dictates the hours that he or she will work on the job.

Prong Two: Service Outside the Usual Course of the Employer’s Business

Prong two of M.G.L. c. 149, s. 148B(a)(2) provides that the service the individual performs must be “outside the usual course of business of the employer” in order for the individual to not be classified as an employee. A worker whose services form a regular and continuing part of the employer’s business” and “whose method of operation is not such an independent business” through which workers’ compensation costs can be channeled, “should be found to be an employee.” Yet, “if the worker is performing services that are part of an independent, separate, and distinct business from that of the employer,” prong two is not implicated.

Prong Three: Independent Trade, Occupation, Profession or Business

Prong three provides that the individual “is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed” in order for the individual to be classified other than as an employee. Here the issue is whether a worker is capable of performing the service to anyone wishing to avail themselves of the services, or if the nature of the business compels the worker to depend on a single employer for the continuation of the services. 

 

Internal Revenue Service

IRS Guidelines for Determining Independent Contractor Status for Consultants In deciding whether an individual is an employee or an independent contractor, the individuals’ title is irrelevant. What is important is the presence or absence of the employer’s right to “direction and control” over the individual. The more direction and control an employer exercises over an individual, the greater chance that the individual is an employee. If a person is under the control and supervision of the employer and is bound to obey his/her instructions not only as to the result to be accomplished but also as to the means and methods that are to be used in the performance of the work, then the person is an employee and should be hired according to the policies and procedures of the Office of Human Resources.

Consultant or Independent Contractor classification is based on facts and circumstances; no one fact determines service provider classification. The IRS currently emphasizes three broad categories: behavioral control, financial control, and the overall relationship.

Behavioral Control

Independent contractors determine when, where and how they will accomplish the task. Behavioral factors that indicate employee classification are: Emerson College provides training and/or instructions about how to complete the task, requires a full time commitment for an extended period, requires the individual to perform the services personally or requires progress reports on a regular basis.

Financial Control

Independent contractors have significant investments in their businesses and can maximize their profits by managing costs. Some financial factors that indicate employee classification are: Emerson furnishes equipment, materials, and supplies, reimburses for travel and business expenses, and accepts timesheets for hours worked. A service provider who works at home generally does not have a significant investment in the business.

Relationship

Independent contractors have a broad customer base. Some relationship factors that indicates independent contractor status are: performs services for multiple customers at the same time, advertises their business, cannot be fired if they produce a result based on the specifications of the contract, is independent of activities within the hiring department, and a continuing relationship is not anticipated. Projects will be awarded only when the need arises. If the service provider works primarily for Emerson College, the service provider should generally be classified as an employee.

 

California Employment Development Department and the Division of Labor Standards Enforcement

California starts with the presumption that the worker is an employee. For most matters before the Division of Labor Standards Enforcement (DLSE), applying the "multi-factor" or the "economic realities" test adopted by the California Supreme Court the most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Additional factors that may be considered depending on the issue involved are:

1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
2. Whether or not the work is a part of the regular business of the principal or alleged employer;
3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
5. Whether the service rendered requires a special skill;
6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
8. The length of time for which the services are to be performed;
9. The degree of permanence of the working relationship;
10. The method of payment, whether by time or by the job; and
11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Even where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary.

Other points to remember in determining whether a worker is an employee or independent contractor are that the existence of a written agreement purporting to establish an independent contractor relationship is not determinative and the fact that a worker is issued a 1099 form rather than a W-2 form is also not determinative with respect to independent contractor status.

 

Other Information

The following table may be used as a guide to assist you in determining whether or not an individual may be viewed as a consultant for some of the tasks commonly performed at the College. Space prohibits a complete listing of available consultant services available. Please contact Procurement Service or Human Resources if you have any questions. The table assumes no existing employment relationship with the College.

Consultant Status Indicated	Employee Status Indicated
Architect or Engineer Artist Accounts Receivable Management Accounting or Auditing Services Attorney Executive Search Firm Graphic Designer Honoraria Logistics Analyst Management Consultant Research Advisor/Collaborator Policy Advisor Software Consultant Specialized Administrative Advisor Website Designer	Accountant Administrative Assistant Administrative Manager Bookkeeper/Accountant Budget Manager Cashier Computer Programmer Curriculum Developer Department Assistant Department Chairperson Instructor Principal Investigator Librarian Researcher/Lab technician Teacher/Professor

 

 

 

 

 

 

 

 

 

Appendix C-1

 

EMERSON COLLEGE Independent Contractor Agreement (short form)

 

This Independent Contractor Agreement (the “Agreement”) is made as of the [x] day of [INSERT MONTH], 2016 (the “Effective Date”) between Emerson College, with an address of 120 Boylston Street, Boston, Massachusetts (“Emerson”) and [INSERT CONTRACTOR NAME], with an address of [INSERT CONTRACTOR ADDRESS] (“Contractor”).  For purposes of this Agreement, Emerson and Contractor each shall be referred to individually as a “Party” and collectively as the “Parties.” 

1. Services and Payment: [INSERT SERVICE DESCRIPTION AND PAYMENT TERMS] (the “Services”).
2. Term: Unless terminated earlier pursuant to Section 18, the term of this Agreement shall be [INSERT TERM] (the “Term”).
3. Contractor’s Last Four (4) Digits of Social Security Number or Individual Tax Identification Number: [INSERT LAST FOUR DIGITS OF SOCIAL SECURITY NUMBER OR INDIVIDUAL TAX IDENTIFICATION NUMBER]
4. Notices: Whenever any notice, demand, or request is required or permitted, such notice, demand, or request shall be in writing and shall be delivered by hand, be sent by registered or certified mail, postage prepaid, return receipt requested, or be sent by nationally recognized commercial courier for next business day delivery, or shall be transmitted by facsimile or electronic mail (“e-mail”) to the authorized representative of each Party (“Authorized Representative”) at the address or e-mail address set forth below:
   1. Consultant: ______________________________________
   2. Emerson: ________________________________________
5. Relationship of the Parties. The relationship between the Parties shall be that of independent contractor, and nothing in this Agreement shall be construed as creating the relationship of a joint venture, employer and employee, principal and agent and the like between the Parties. 
6. Benefits. Contractor hereby acknowledges that Emerson does not provide insurance coverage nor benefits to independent contractors and does not withhold federal, state or FICA taxes (or other similar employment related taxes) from payments to independent contractors.
7. Return of Documents. Upon termination of this Agreement, Contractor shall deliver to Emerson all documents made, compiled by or delivered to Contractor in connection with the Services (including, Work Product (as defined hereafter)) provided under this Agreement.  Such documents shall at all times be the property of Emerson.
8. Work Product. Any and all data, information, documents, methodologies, materials, software, computer programs, trade secrets, manuals, analyses, forms, techniques, research, reports, modifications, improvements, procedures, works of authorship, or inventions created, conceived, generated or derived by Contractor as a result of or in connection with the Services (the “Work Product”) shall be deemed to be “work made for hire” by Contractor to Emerson to the extent permitted by law and shall be the exclusive property of Emerson.  Without limiting the foregoing, Emerson shall have the irrevocable, worldwide right to use and exploit the Services and Work Product in any manner and to authorize third-parties to exercise any of its rights.  Contractor hereby waives all “moral rights” to the extent permitted by law. 
9. Assignment and Subcontracting. Contractor shall not assign or transfer all or part of this Agreement.  Contractor represents that it has no agreements with, or obligations to, others which are inconsistent with its availability to act as a Contractor to Emerson.  Contractor shall not subcontract or delegate its obligations under this Agreement without the prior written consent of Emerson.  Any attempts to assign such interest, subcontractor or delegate such duties shall be void. 
10. Non-Solicitation. During the Term and for three (3) months immediately following the termination of this Agreement for any reason (whether voluntary or involuntary), Contractor agrees that he/she: (1) shall not request, induce, or attempt to induce any director, officer, employee, subcontractor or agent of Emerson to terminate its relationship with Emerson; and (2) shall not attempt to hire, attempt to employ, attempt to associate in business with or successfully hire, employ or associate in business with any person employed by Emerson; provided, however, any of the aforementioned individuals shall not be precluded from (i) general advertisements or solicitations for employment that are not targeted to such individuals, or (ii) hiring persons who have been terminated by Emerson prior to commencement of communications between Contractor and such individuals.
11. Compliance with Law. Contractor shall comply with all applicable international, federal, state and local laws (including, procurement of all necessary licenses and permits) and regulations applicable to this Agreement or to Contractor’s performance of the Services.  If any discrepancy or inconsistency should be discovered between the specifications established for the Services and any law, regulation, ordinance, order or decree applicable to the Services, Contractor shall immediately report such discrepancy or inconsistency to Emerson and shall conform its work to any orders or instructions issued by Emerson.  Contractor hereby certifies that it is an Equal Employment Opportunity employer and that it complies with the provisions set forth in Executive Order 11246, as amended, and all other applicable state and federal laws.
12. Waiver. The waiver of a breach of this Agreement shall not be construed as a waiver of any subsequent breach.
13. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered, shall constitute an original, but all of which together shall constitute one agreement binding on the Parties.
14. Use of Name. Contractor agrees not to use Emerson’s name, trademarks or any other identifying characteristic in connection with any advertising or promotion related or pertaining to the Services performed under this Agreement without the prior express written permission of Emerson.
15. Confidentiality. Contractor shall maintain in strict confidence and held by Contractor in trust and solely for Emerson’s benefit and use, and shall not be directly or indirectly disclosed by Contractor to any person whomsoever, without prior written permission from Emerson, all information marked or otherwise identified as proprietary or confidential obtained by or revealed to it by Emerson, or as a result of, the Services (the “Confidential Information”).   Confidential Information may also include information that, under the circumstances surrounding the disclosure, would be considered to be proprietary or confidential by a reasonable business person acting in good faith. It includes non-public information regarding Emerson’s products, features, marketing and promotions, information on employees, customers, faculty, alumni, students, systems and business practices (including, personally identifiable information (“Personal Information”).   Confidential Information shall not include information that: (i) Contractor, its agents, or subcontractors developed independently without the use of the Confidential Information; (ii) Contractor already knows at the time it is disclosed as shown by Contractor’s written records; (iii) Contractor received from a third-party authorized to disclose it without restriction; (iv) information which is or subsequently becomes publicly available or is received from another source, in both cases other than by a breach of an obligation of confidentiality; or (v) based on advice of legal counsel, Contractor is required by law, regulation, or valid court or governmental agency order to disclose; provided, however, that Contractor first notifies Emerson of its intent to make such a disclosure.  Contractor shall not, during the Term or at any time thereafter, disclose such Confidential Information to any person or use the same in any manner whatsoever except as is normal and necessary while communicating with Emerson or with others on its behalf.  Contractor shall handle Emerson’s Confidential Information with a standard of care at least as rigorous as that specified in the Emerson’s s guidelines for Data Risk Classifications ("Guidelines"), located at https://support.emerson.edu/hc/en-us/articles/205483375-data-classification-access-transmittal-and-storage-guidelines and Emerson’s policies concerning information security, which can be found at http://www.emerson.edu/policy/data-security and which are hereby incorporated by reference into the Agreement. If the Confidential Information includes student “education records” as defined by the Family Educational Rights and Privacy Act (“FERPA”) (20 U.S.C § 1232g), Contractor shall comply with FERPA with respect to such records.
16. Personal Information. Contractor acknowledges and agrees that, in the course of its engagement by Emerson, Contractor may receive or have access to Personal Information. Contractor represents and warrants that its collection, access, use, storage, disposal and disclosure of Personal Information, does and shall comply with all applicable federal and state privacy and data protection laws, as well as all other applicable regulations and directives. Contractor shall be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use and disclosure of Personal Information under its control or in its possession.  Contractor agrees and covenants that it shall:
    • keep and maintain all Personal Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure; and
    • use and disclose Personal Information solely and exclusively for the purposes for which the Personal Information, or access to it, is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Personal Information for Emerson's own purposes or for the benefit of anyone other than Emerson, in each case, without prior written consent of Emerson.
17. Indemnification. If Contractor’s negligence, fraud, intentional misconduct, breach of this Agreement or infringement of an intellectual property right results in a claim by a third-party against Emerson or its affiliates, or any of its officers, directors, customers, faculty, alumni, students, employees or agents (collectively, “Emerson Indemnified Parties”), then Contractor shall indemnify and hold harmless the Emerson Indemnified Parties against all damages and costs incurred due to such claim, including, but not limited to, attorney’s fees and court costs.
18. Termination. Each Party may terminate this Agreement upon thirty (30) days’ written notice to the other Party, provided that no such termination shall relieve either Party from any obligation incurred prior to the date of termination. 
19. Representations and Warranties. Contractor represents and warrants to Emerson that it has the experience, capability, and resources to efficiently and expeditiously provide the Services in a professional and workmanlike manner. Contractor represents and warrants to Emerson that it shall, at all times, provide its best professional efforts to provide the Services.  In addition to any other representations and warranties set forth herein, Contractor represents and warrants to Emerson the following during the Term:
    
    • Contractor’s performance of the Services pursuant to this Agreement does not violate any existing agreement or obligation between Contractor and a third-party;
    • Contractor shall not use third-party intellectual property provided to Contractor by Emerson for Contractor’s use in performance of the Services, without the prior consent of Emerson; and
    • There is no action, order, writ, injunction, judgment or decree outstanding or claim, suit, litigation, proceeding, labor dispute, arbitral action or investigation pending, or to the actual knowledge of Contractor threatened, against or relating to Contractor that would have a material adverse effect on this Agreement or on Contractor’s ability to consummate the transactions contemplated hereby.

 

20. Insurance.  Contractor shall maintain, for the Term, insurance in an amount reasonably adequate to cover its obligations hereunder, and, upon request, Contractor shall provide to Emerson a certificate of insurance showing that such insurance is in place.  Contractor shall maintain professional liability insurance consistent with industry practice.
21. Sexual Misconduct Policy. Contractor acknowledges that Contractor is bound by Emerson’s Sexual Misconduct Policy [http://www.emerson.edu/policy/sexual-misconduct] and Emerson’s Policy Against Discrimination, Harassment, and Retaliation [http://www.emerson.edu/policy/discrimination-harassment-retaliation] and that a violation of either policy is a material breach of this Agreement.
22. Severability.  If any provision of this Agreement shall be declared void, illegal or unenforceable, the remaining provisions of this Agreement shall be valid and enforceable to the extent permitted by applicable law.
23. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties and shall supersede any prior agreement, written or oral, not incorporated herein. 
24. Governing Law. This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts.  The Parties agree that any disputes pertaining to this Agreement shall be brought exclusively in the state and federal courts in Massachusetts, and the Parties consent to venue and jurisdiction in such courts.
25. Survival.  The provisions set forth in Sections 4, 5, 8, 9, 10, 14-17, 20, 22-25 and such other Sections necessary to effectuate the completion of the Services and fulfillment of the obligations of the Parties shall survive any termination or expiration of this Agreement.

 

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized representatives as of the Effective Date.

 

Emerson College                                                                                            Contractor

By:            _____________________________                                   By:        _____________________________

Name:     _____________________________                                    Name: _____________________________

 

Date:       _____________________________                                    Date:   _____________________________

 

 

 

______________

 

Appendix C-2

 

EMERSON COLLEGE Professional Services Agreement (over $25,000)

 

TBD