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What do you do when an agency sends an unacceptable Terms and Conditions agreement?
Thread poster: Steven Capsuto

Steven Capsuto  Identity Verified
United States
Local time: 00:51
Spanish to English
+ ...
Sep 25, 2008

One of my longtime clients used to have a basic, perfectly reasonable three-page Terms and Conditions agreement that translators had to sign.

This week, however, they sent me their new agreement: a 10-page magnum opus that is largely reasonable (translators must deliver jobs on time, the agency will pay on time, etc.), but which contains a few clauses that are flat-out unacceptable. If it comes down to it, I wouldn't mind losing the client, as they only send me a couple of jobs a year. But I find it astonishing that anyone would sign this thing.

The new agreement places all legal and financial liability on the translator: the agency accepts no responsibility for anything. Also, the translator basically waives the right to sue the agency if it fails to live up to its part of the contract. Disputes between the agency and translator are to be resolved by an arbitrator appointed by -- get this! -- the association of translation agencies to which the company belongs.

What do you usually do in similar situations, particularly when it's an existing client? Try to negotiate? Ignore the request? Explain why the document is unacceptable? Raise the issue in a public forum such as this one? In this case, I've done all of the above (except "ignore the request," of course).

[Edited at 2008-09-25 00:58]


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Katalin Horváth McClure  Identity Verified
United States
Local time: 00:51
Member (2002)
English to Hungarian
+ ...
Try to negotiate Sep 25, 2008

I would try to negotiate: I would tell them that I am willing to sign the document if this and this (the unacceptable) parts are crossed out.
I had a few cases where certain clauses were unacceptable for me, and I did convince the agency to take them out, or modify them.
Those clauses were for example forbidding me to accept jobs from end clients that I worked for (through the agency) for 2-3 years or so after the project was done. This was ridiculous, because it wasn't even talking about soliciting work from them (which I would understand to a certain extent, if they limited that), but for cases where the end client would come to me directly, or through another agency...
I had this type of clause actually twice, with two different agencies, and I successfully got it crossed out of the agreement in both cases.

Another one was a non-compete clause that was probably copied from an in-house contract, that would basically forbid me to operate in the same market as the agency after I ceased to work for them. That one got crossed out, too.

The most recent was an NDA, actually two NDAs, overlapping, and that was the problem.
I had a general NDA with a long-standing client, and then all of a sudden they required me to sign another one, specific to an end client whose projects I was working on. The latter was required by the end client: they required the agency to get all their translators/editors/testers that were involved in the localization project to sign this NDA.
On top of it, the end client also required the agency itself to sign a blanket NDA towards them.
The problem was - as I pointed out to the agency - that if I signed both NDAs, and if there was a breach (which was pretty loosely defined), I could get sued by both the end client and the agency. (Plus, the end client could sue both the agency and myself.)
The agency recognized the truth in what I was saying, and accepted my proposal.
I told them I would sign the end client's NDA on the condition that they sign a waiver for me, saying that for that particular client, the client's NDA is the only one in place and the general NDA I have with the agency does not apply to those projects.
We are still working together.


So, I would suggest you try negotiating. If it does not lead to a satisfactory solution, drop them.
Katalin

[Módosítva: 2008-09-25 01:13]


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José Henrique Lamensdorf  Identity Verified
Brazil
Local time: 01:51
English to Portuguese
+ ...
An agreement is a covenant between TWO parties Sep 25, 2008

The agency writes the agreement for their convenience. There is absolutely no objection to the translator writing the agreement and having it signed by the agency or end-client; I've done it several times already. A third party may write the agreement (e.g. a standard form could be used). If both parties sign it, it becomes irrelevant who wrote it: they are bound by whatever it says there.

If this agency hired an expensive lawyer who wants to be as tough as every cent s/he received, it's their problem. From the way you put it, there are several leonine and draconian clauses (as they name them in lawyerese) which won't put you in jail if you don't accept them. You may just say no and drop it like a hot potato.

I'd suggest you tell them that you consider clauses # (list them) unacceptable, and give them the option to either remove or rephrase them to your satisfaction, or to find another translator.


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Giuseppina Gatta, MA (Hons)
Member (2005)
English to Italian
+ ...
It happened to me too Sep 25, 2008

Steven Capsuto wrote:

One of my longtime clients used to have a basic, perfectly reasonable three-page T
What do you usually do in similar situations, particularly when it's an existing client? Try to negotiate? Ignore the request? Explain why the document is unacceptable? Raise the issue in a public forum such as this one? In this case, I've done all of the above (except "ignore the request," of course).

[Edited at 2008-09-25 00:58]


...with a couple of U.S. agencies and a european one. I tried to negotiate (ask them to change the contract), with no results. They did not change the contract and I did not work with them. Simple as that


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xxxtazdog
Spain
Local time: 06:51
Spanish to English
+ ...
a similar situation Sep 25, 2008

I ran into a similar situation about a year and a half ago. A local agency I'd worked with on a very regular basis for 3-4 years had been taken over by a mega-agency, and a new Service Level Agreement was sent out. Like yours, it was 10 or 11 pages long, and had some clauses that I thought were absolutely unacceptable. I notified the Vendor Manager and also my usual Project Manager that I couldn't sign the SLA as written, and they said they couldn't modify it because it wasn't their document but had come from the head office. After some discussion, they decided to keep working with me, even though I had refused to sign it. That worked very well for all of us for several months, until the head office had them install some new software, which added a blurb on the POs stating that acceptance of the PO meant acceptance of the SLA in its entirety. I again objected, but this time there was nothing to be done. The local director told me he would take it up with the head office, but didn't offer much hope of being able to do anything. Evidently he struck out, as expected, because I never heard another word about it--and I have never worked for the agency again.

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Steven Capsuto  Identity Verified
United States
Local time: 00:51
Spanish to English
+ ...
TOPIC STARTER
Thanks Sep 25, 2008

Thank you all for your thoughtful replies.

I'm glad to hear that translators -- or at least some of us -- are standing firm in refusing to work with agencies that impose such rules.

Of course, I'm sure some that out of necessity or inertia, some people will sign any contract they're sent, no matter how dangerous or lopsided the conditions.

I hope my client is willing to negotiate. But if not, I have plenty of other work.

[Edited at 2008-09-25 05:48]


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Christine Andersen  Identity Verified
Denmark
Local time: 06:51
Member (2003)
Danish to English
+ ...
We're the suppliers, but we are also the 'small guys' Sep 25, 2008

I think it is very important to stand firm on issues like this, and discuss them so we all stand together.

One day it is terms and conditions and NDAs.
Next day, who knows, it might be TMs and CAT tools, with agencies interfering in which you can use and which you must use.

Or availability, so that you are tied to your computer or blackberry 24/7 365 days a year...

If you have a working agreement that functions well, there have to be good reasons for changing it.

Make agencies think, and insist on having a say about the terms you agree to. It is your life after all!

Best of luck!


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Felipe Gútiez  Identity Verified
Germany
Local time: 06:51
Member (2002)
German to Spanish
+ ...
Exactly, translators are the "small guys" Sep 25, 2008

Christine Andersen wrote:

I think it is very important to stand firm on issues like this, and discuss them so we all stand together.

One day it is terms and conditions and NDAs.
Next day, who knows, it might be TMs and CAT tools, with agencies interfering in which you can use and which you must use.

Or availability, so that you are tied to your computer or blackberry 24/7 365 days a year...

If you have a working agreement that functions well, there have to be good reasons for changing it.

Make agencies think, and insist on having a say about the terms you agree to. It is your life after all!

Best of luck!


Your´re right!!!


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Mervyn Henderson  Identity Verified
Spain
Local time: 06:51
Member
Spanish to English
+ ...
Redraft Sep 25, 2008

Think of the last leasing agreement or employment contract you translated, and how you thought to yourself as you translated: Crikey, I wouldn't like to be the lessees or the employees signing this, for they make one false move, and they're dead in the water. Them, and/or their agents, representatives, anyone acting in their name and/or on their behalf now or at any time in the future etc. ......

Sure it's all geared towards them, for it's their legal eagle that drafted it.

As others have said, just say no, or produce your own version. They concentrate on late delivery, you concentrate on late payment. They talk of poor quality of translation, you mention the quality of TMs you have to work with etc.


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Jenny Forbes  Identity Verified
Local time: 05:51
Member (2006)
French to English
+ ...
Absolutely agree Sep 25, 2008

Mervyn Henderson wrote:

Think of the last leasing agreement or employment contract you translated, and how you thought to yourself as you translated: Crikey, I wouldn't like to be the lessees or the employees signing this, for they make one false move, and they're dead in the water. Them, and/or their agents, representatives, anyone acting in their name and/or on their behalf now or at any time in the future etc. ......

Sure it's all geared towards them, for it's their legal eagle that drafted it.

As others have said, just say no, or produce your own version. They concentrate on late delivery, you concentrate on late payment. They talk of poor quality of translation, you mention the quality of TMs you have to work with etc.


I absolutely agree. Either say no or delete the unacceptable clauses (explaining why if you wish).
Like you, Mervyn, I often think how one-sided the contracts I translate are - especially insurance contracts. The insurer doesn't cover anything that is likely to happen. The insured pays an "excess" for everything, if he makes a claim the policy is terminated, etc. etc.
Don't sign it, Steven.
Jenny.


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Steven Capsuto  Identity Verified
United States
Local time: 00:51
Spanish to English
+ ...
TOPIC STARTER
These folks are sneaky Sep 25, 2008

Jenny Forbes wrote:
I absolutely agree. Either say no or delete the unacceptable clauses (explaining why if you wish).


There's a notice on this particular agreement stating that any deletions and changes made by the translator are invalid, and that signing a modified version will be construed as having signed the original unmodified version.


Don't sign it, Steven.


Thanks, Jenny. No fear: signing it wasn't ever an option. I assume someone must be agreeing to these terms, though, because these companies do stay in business.

The new sneaky thing I notice in agreements -- usually in service agreements for cable companies, web sites, etc. -- is a clause saying the company can change the terms of the contract at any time without notifying the client, and that the client agrees to be bound by the changes. Who in the world would agree to that?

[Edited at 2008-09-25 09:21]


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Samuel Murray  Identity Verified
Netherlands
Local time: 06:51
Member (2006)
English to Afrikaans
+ ...
Simple solution Sep 25, 2008

Steven Capsuto wrote:
What do you usually do in similar situations, particularly when it's an existing client?


The contract is basically a codification of the relationship of trust between you and the client. It is important, therefore, that you don't sign something you disagree with. I know some translators (even some clients) regard the contract as a formality that everyone signs without looking, because "...what can possibly go wrong?".

My approach is this: I take a reasonably thick black pen and a ruler and I neatly cross out the offending sections, or if the problem is only a word or two, I cross it out and/or insert a word or two using the same pen. I also sign my initials in the margin next to each change I make. I then fax the altered contract.

Don't try to negotiate with the client -- odds are the client does not have negotiating power. If you simply make the changes, the client is free to say nothing or to query it. If the client queries it, say that you can't sign a contract with those elements in it, and that's that.

Don't add items to the contract. Only remove elements from it. It makes it easier that way. If you simply remove an item, the client might say "well, I guess it's okay, let's continue working with the translator" but if you add something, the client will say "we'd better run this by the lawyer again" and the client's boss will say "no, dn't ask the lawyer, he is is expensive... just don't use this translator again."


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Allesklar  Identity Verified
Australia
Local time: 14:21
English to German
+ ...
same here Sep 25, 2008

I agree with Samuel. I have done the same thing a few times and never got knocked back for it.



Steven Capsuto wrote:

There's a notice on this particular agreement stating that any deletions and changes made by the translator are invalid, and that signing a modified version will be construed as having signed the original unmodified version.




That one obviously needs to get crossed out as well, it's utter rubbish anyway - signing one thing can't be construed as having signed something completely different, a lawyer would have a field day with that.


Steven Capsuto wrote:

The new sneaky thing I notice in agreements -- usually in service agreements for cable companies, web sites, etc. -- is a clause saying the company can change the terms of the contract at any time without notifying the client, and that the client agrees to be bound by the changes. Who in the world would agree to that?



I'm not a legal expert, but I gravely doubt that this would be enforceable. Might work as an intimidation tactic against people who don't know their rights though. I wonder whether there are laws or codes of practice that would prohibit these things and whether there could be consequences for lawyers involved in drafting such "agreements".

[Edited at 2008-09-25 11:55]


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Samuel Murray  Identity Verified
Netherlands
Local time: 06:51
Member (2006)
English to Afrikaans
+ ...
Not sure what the legal position would be... Sep 25, 2008

Steven Capsuto wrote:
There's a notice on this particular agreement stating that any deletions and changes made by the translator are invalid, and that signing a modified version will be construed as having signed the original unmodified version.


Well, you can cross that out

But I wonder what the legal position of such a clause would be. I mean, if you haven't signed an unmodified version, and you sign a modified version, then the modified version is also the unmodified version, right?

But it would be difficult to speculate -- different countries put different levels of value on printed stuff versus handwritten stuff. It may be that in the client's country "unmodified" means "nothing handwritten".

The new sneaky thing I notice in agreements -- usually in service agreements for cable companies, web sites, etc. -- is a clause saying the company can change the terms of the contract at any time without notifying the client, and that the client agrees to be bound by the changes.


Or, that a modified agreement can be published on the client's web site, and if the translator had visited the site (any page of it) then he is deemed to have seen and accepted the modified agreement.


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Bernhard Sulzer  Identity Verified
United States
Local time: 00:51
Partial member (2006)
English to German
+ ...
My two cents Sep 25, 2008

Just wanted to add this:

It is important to have a professional relationship. If there are signs of unprofessional behavior as is the case with some of the terms and conditions of your client, I'd be dropping him/her/them like a sack of hot potatoes. Their terms and conditions must be your terms and conditions
No ifs and buts about it. You can't trust them. They'll still try to do other unprofessional things to you.
You are of course the one deciding about the terms and conditions, there yours' and not theirs'.
They can accept your terms and conditions (= your own prepared form) or leave it be.
I would NOT try crossing out words/phrases/sentences of THEIR terms and conditions (how is that professional?) but present my own document. But not to that company I wouldn't.

Best regards,

Bernhard Sulzer


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