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\"indemnify (agency) and hold harmless\": Would you sign such an agreement?
Thread poster: Bertha S. Deffenbaugh

Bertha S. Deffenbaugh  Identity Verified
United States
Local time: 20:00
English to Spanish
+ ...
Jun 14, 2002

Would like to hear your views on this.



I have been sent a very long contract of agreement which I consider totally unacceptable.



One of the paragraphs in this agreement reads:



\"Translator shall indemnify XXXX and hold it harmless against all liability or loss, and against all claims or actions based upon or arising out of damage or injury to persons or property caused by or sustained in connection with the performance of the contract or by conditions created thereby, or based upon any violation of any statute, ordinance, and the defense of any such claims or actions. Specifically, Translator shall indemnify and hold XXXX harmless in any suit initiated against XXXX as a result of an inaccurate or unacceptable translation, and shall be liable for all costs, including, reasonable attorneys fees, expended by XXXX in defense of such suit\"





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BelkisDV  Identity Verified
United States
Local time: 22:00
Spanish to English
+ ...
Nope Jun 14, 2002

Bertha,



First I would like to state that there are error/omissions insurance policies for translators (which 99% of us don\'t have).



Second, given the subjective nature of our business, anyone who thinks they know anything about translation may file a lawsuit claiming the text was mistranslated when in fact it has not been. This would imply of course hiring an attorney, bringing in experts in the matter and spending all kinds of money that no one has.



The only way I would sign that contract would be by crossing out that paragraph and initialing it, signifying my disagreement with that clause. If the client doesn\'t agree, let him find someone foolish enough to fall into that trap.



Regards,

Belkis


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mascd
Canada
Local time: 22:00
French to English
+ ...
I would not and did not Jun 14, 2002

A similar contract was sent to me for signature, I called the client and told him I would not sign. He told me that he believed translators had an insurance policy that covered them if the translation was unacceptable. I told him I had no such insurance and had no intention for shopping for one. BTW I worked for this client for about 2 years on an ongoing basis and never had to sign his agreement.

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Bob Kerns  Identity Verified
Germany
Local time: 04:00
Member (2002)
German to English
No way Jun 14, 2002

I have also received contracts and agreements with similar clauses and have ALWAYS told the agency or customer in question that I am not prepared to accept them since they are totally one-sided. Even with liability insurance I would NEVER sign such an agreement, among other things since they indicate that the agency performs absolutely NO quality assurance and just forwards the translation to the end customer without any risk to itself.



This sort of thing is even worse than low rates!!


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Russell Gillis  Identity Verified
Local time: 20:00
Spanish to English
Doesn't sound too unreasonable... Jun 14, 2002

I think that most translator associations have a code of ethics that has the same underlying meaning - that we take responsibility and are liable for erroneous translations.



If you are really concerned, make sure you have insurance. Here in Canada we can get insurance for this specific purpose.


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Bertha S. Deffenbaugh  Identity Verified
United States
Local time: 20:00
English to Spanish
+ ...
TOPIC STARTER
Yes, Belkis Jun 14, 2002

This independent contract agreement came from AN AGENCY, not from a direct client.



This is why I consider it to be totally unacceptable.

Besides, what is the agency\'s responsiblity? Shouldn\'t an agency ensure *THEIR* client that all translations have been proofread before delivery? If not, what the heck is their responsibility? None?





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Maria Dolors Gonzálvez Playà  Identity Verified
Spain
Local time: 04:00
Member (2005)
German to Spanish
+ ...
And who are they? Jun 14, 2002

Who is this agency anyway? Just in case, you know, and be prepared!

You can use our emails, if you want.

But I will also understand, if you do not want to share that information with us.

Regards and... don\'t sign it!





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John Kinory
Local time: 03:00
English to Hebrew
+ ...
No way on earth ... Jun 14, 2002

... even though I do have professional indemnity insurance (fortunately, I\'ve never had to rely on it {knock on side of head} - and a respected colleague told me it\'s better not to have one, because if the client thinks you have no money, they won\'t bother to sue you).



Anyway, as has been said, it\'s the agency\'s responsibility to perform quality checks, AND have insurance.



One of the silliest contracts I have ever been offered was from a very well-known film studio, potentially very lucrative work. I rejected it - and they refused to amend the contract - because they demanded access at all times to my filing cabinet, to ensure I had put on it a 3-bolt lock and was protecting their documents against a 0.000001% probability of being seen by anyone else. I told them to take a long walk down a short pier.



_________________



[ This Message was edited by: on 2002-06-14 23:03 ]


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Nathalie M. Girard, ALHC  Identity Verified
English to French
+ ...
I would not sign this either... Jun 14, 2002

Hi Bertha,



I would not sign this either, and this would raise a flag in my mind about the actual other business practices of this agency.



They sound very much *one sided* and I\'m not sure that they would treat freelancers properly. Just my own feelings.



Have a great weekend!



Nathalie



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Eva Blanar  Identity Verified
Hungary
Local time: 04:00
English to Hungarian
+ ...
I would sign this for a client, but never for an agency! Jun 14, 2002

As a matter of fact, I would qualify this document as a very bad certificate about the agency. It is acceptable to establish penalties in the contract for the case of your eventual failure to do the job, but these ought to be proportionate to the size / importance of the job.

I would advise to forget about this particular agency, there are many more!


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Bertha S. Deffenbaugh  Identity Verified
United States
Local time: 20:00
English to Spanish
+ ...
TOPIC STARTER
I have already told the agency that I do not accept their terms. Jun 14, 2002

But I wanted to hear your views and also share the info with you so that we can stick together.



I am sure the same agency has sent the same \"agreement\" to other translators. They have to deal with a big project and need several professional to handle it.


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Dr. Fred Thomson  Identity Verified
United States
Local time: 20:00
German to English
Triple your rates Jun 14, 2002

Tell them that this kind of guarantee is warranted only at triple your present rates. They will undoubtedly quickly back off.

We call this stuff \"boiler-plate,\" because the language is just stuck into a contract even if it makes no sense. Here, however, they have gone out of their way to make it apply directly to a translation.

You are wise to have noticed and to have responded with caution. You\'ll go far!


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John Kinory
Local time: 03:00
English to Hebrew
+ ...
This goes beyond 'reasonable' Jun 14, 2002

Quote:


On 2002-06-14 17:49, rgillis wrote:

I think that most translator associations have a code of ethics that has the same underlying meaning - that we take responsibility and are liable for erroneous translations.



If you are really concerned, make sure you have insurance. Here in Canada we can get insurance for this specific purpose.





Russell,

I see your point. But this contract has nil restrictions. It holds you liable for consequential losses ad infinitum. No insurance policy goes that far, and no reasonable contract does.

I suspect that in an English court, this contract would be thrown out under the Unfair Contracts Act or whatever it\'s called; as being contrary to public policy.
[addsig]

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Indemnity my foot! :o) Jun 15, 2002

I\'d say: Sign it, why not?



Such a document has NO LEGAL VALIDITY whatsoever, and the companies who require that you sign these unethical waivers are completely out in left la-la land, legislation-wise.



Here is the reason why:



By hiring a translator, the company assumes responsibility for his or her work. Similarly, when GM hires an engineer, it\'s GM who is ultimately responsible for that engineer\'s actions. However, GM doesn\'t require that their engineers sign waivers and disclaimers, the reason being because they know these waivers won\'t hold up in court anyway: If my GM truck \"spontaneously\" combusts or the safety bags go off three minutes after the collision, guess who I\'m gonna sue? Try as they might, they will not be able to shuffle the responsibility around by saying \"Oh, that\'s not us, that\'s those stupid engineers we\'ve hired, sue them instead!\" — the customer simply won\'t buy this reasoning. When a customer buys GM products, he enters a business relationship not with Joe Sliderule the underpaid and overworked engineer, of whose existence he has no clue, but with GM itself. And if GM wishes so, it may later sue it\'s engineers (good luck on that one, because in order to win they will have to prove criminal intent on the engineers\' part).



So, my advice is: It\'s totally UP TO YOU whether or not you sign the waiver (frankly, you might as well do, what the heck? Why not? And in reward, you\'ll get the job!)







[ This Message was edited by: on 2002-06-15 08:28 ]


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Giovanni Guarnieri MITI, MIL  Identity Verified
United Kingdom
Local time: 03:00
Member (2004)
English to Italian
I wouldn't sign it... Jun 15, 2002

anyway, most agencies do have indemnity insurance to cover themselves. There is one small detail, though. I was told by an agency with such an insurance, that if they made a claim under their policy, the insurer then would try and recover the money suing the translator. If this is true, I really don\'t know.



Regards,



Giovanni


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