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Can I sign this?
Thread poster: Quattro
Quattro
United States
Local time: 10:05
Mar 11, 2009

Normally I am happy to sign NDAs, but a client has sent me an NDA with the following clause that made me hesitate. I don't know if I am over-reacting or being overly cautious, but the last part with "Deliverables will not infringe any patent, copyright..." and "indemnify [Agency] against all damages, losses, liability or expense" worries me.

What do you think?

7. Warranty
[Translator] represents and warrants that (i) [Translator] has the knowledge, experience and skill to provide the Services in a professional and timely manner, (ii) the Deliverables will conform to the specifications contemplated under the Work Order and (iii) the Services and Deliverables will not infringe any patent, copyright, trade secret or other proprietary right of any third person. [Translator] will indemnify [Agency] against all damages, losses, liability or expense that [Agency] may suffer or incur as the result of any breach of this Section 7.

Thanks in advance for your input.


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Tomás Cano Binder, CT  Identity Verified
Spain
Local time: 19:05
Member (2005)
English to Spanish
+ ...
Yes, no problem! Mar 11, 2009

As long as you add a little bit...

[Translator] will indemnify [Agency] against all damages, losses, liability or expense that [Agency] may suffer or incur as the result of any breach of this Section 7 , being such indemnification limited to the total price paid to the translator for the job from which such damages, losses, liability or expense arise.

Just my opinion! I had a similar case in the past and, although the agency was very interesting indeed, I did not start working for them because they did not accept this change.


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Quattro
United States
Local time: 10:05
TOPIC STARTER
Worth a try Mar 11, 2009

Thanks for your very quick response. I would feel a lot better about the clause if they accept an addition like the one you suggested.

I will ask!


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RNAtranslator  Identity Verified
Local time: 19:05
English to Spanish
+ ...
Infringing patents and so Mar 11, 2009

Marie-Louise Halvorsen wrote:

iii) the Services and Deliverables will not infringe any patent, copyright, trade secret or other proprietary right of any third person.

Thanks in advance for your input.


I think that this should be checked by a lawyer. If the source text infringe any patent or so, the translation will infringe it too, and you would be liable. That that does not sound very well.

¡Salud!

Ignacio Vicario Esteban


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Quattro
United States
Local time: 10:05
TOPIC STARTER
Good point Mar 11, 2009

I have asked the client for clarification for now and to consider modifying this particular clause. They don't seem very willing though as many other translators and companies apparently have signed their NDA without raising this issue...

I'm not sure I'd involve a lawyer in the matter. But I may have to do what Tomás did - or rather did not do - and just not work with them. I have never come across a clause quite like this before and there are many other fish in the sea, right?

Thanks for your response.


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Kaiya J. Diannen  Identity Verified
Australia
Member (2008)
German to English
That's what I was thinking Mar 12, 2009

RNAtranslator wrote: If the source text infringe any patent or so, the translation will infringe it too

I think if they want to include that clause, you definitely need clarification.

Let us know how it turns out for you!


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Quattro
United States
Local time: 10:05
TOPIC STARTER
I will... Mar 12, 2009

...keep you posted

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margarete  Identity Verified
United States
Local time: 13:05
German to English
+ ...
Can I sign this? Part Deux Mar 12, 2009

Funny, I just got a NDA that I am unsure about as well. Everything is pretty standard and then there is this section under "Translation Quality":

Before translating text, you must unravel its meaning. You may have to refer to a specialized dictionary, consult an expert, or seek clarification from the author. A translation should be a version of a text in another language which is faithful to the original, but is written in the idiom of the language of the translation, yet suffers no loss of precision.
A text may be arranged in a way which seems clumsy, but there may be good commercial, technical or legal reasons for this which is translator cannot know. Only make changes, therefore, when they are needed to produce a clear, idiomatic translation. At the end of the day, you can be liable for any loss a customer suffers as a result of a faulty translation. We shall check some of your translations retrospectively and send a copy of the checker’s comments.

What do you make of this? It does not read like a legal clause, but then again it states:
"At the end of the day, you can be liable for any loss a customer suffers as a result of a faulty translation."

That is an incredibly vague statement and seems to open the translator up to a host of liabilities.

How do you feel about this and would you sign it?

Thanks!


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Quattro
United States
Local time: 10:05
TOPIC STARTER
I would not sign it Mar 12, 2009

without modifying it as Tómas suggested I did - and then I still might not sign it. I'm not sure it is legally enforceable, but I would not feel comfortable with it.

The words "liable for any loss" always make me very cautious. What if the source text was a bad advertisement and the company lost customers... Could you be liable then?

The exact circumstances under which you would be liable should be clear (in case of gross negligence, for example), and there should be a monetary limit, such as the invoice amount or up to another specified amount.

My immediate thoughts.


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RNAtranslator  Identity Verified
Local time: 19:05
English to Spanish
+ ...
A worse one Mar 13, 2009

margarete wrote:

"At the end of the day, you can be liable for any loss a customer suffers as a result of a faulty translation."



This is worse than the one of Marie Louise. The only one who can sue you for any loss a customer suffer is the customer, the end customer. Signing this you would be liable by the end customer. This would be a nonsense as big as if the end customer accepted that you could sue them in case of not being paid.

It is clear this has not being written by a lawyer. It may be possible they did not realize the meaning of this part. If you explain them, It might be they amend it.

¡Salud!

Ignacio Vicario Esteban


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xxxNMR
France
Local time: 19:05
French to Dutch
+ ...
Maybe it is a kind of test in itself? Mar 13, 2009

They say:
Before translating text, you must unravel its meaning. You may have to refer to a specialized dictionary, consult an expert, or seek clarification from the author.



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Gabriel Luis  Identity Verified
Spain
Local time: 18:05
Member (2008)
German to Spanish
+ ...
my approach to this issue Apr 27, 2009

Well in Germany and Austria its usual to sign a "Berufhaftplichtversicherung"=Seguro de responsabilidad laboral=No idea of its denomination in Eng=Professional liability insurance, determining the amount you can be made liable in case of "things going wrong". Think this is useful and please note that im not trying to sell insurance-stuff...This is the insurance-approach and is valid for freelancers...Ich you use to work for lawyers without intermediation of any trrnaslation agency I rather recommend you to establish the way the "original" text and the translation are to be stored in the future (hardcopy or harddrive or server or whatever) so in case of troubles you can show what´s been your part of the job...I´m now writing a research paper about manipulation of patent translations and believe me, I think this´s gonna be a important issue in the future.


[Edited at 2009-04-27 13:43 GMT]


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Marc Sejourné  Identity Verified
Cambodia
Local time: 00:05
English to French
The source text supercedes the translation Apr 29, 2009

I asked to a sollicitor client of mine: what about if a translation mistake raises a legal issue? The reply is that in case of disagreement the source text is the geniune document, the translation cannot be used to contradict it / undermine it.

Any NDA, even as "creative" as the 2 mentionned above, will not change that general rule.

elguanche wrote:

Well in Germany and Austria its usual to sign a "Berufhaftplichtversicherung"=Seguro de responsabilidad laboral=No idea of its denomination in Eng=Professional liability insurance, determining the amount you can be made liable in case of "things going wrong". Think this is useful and please note that im not trying to sell insurance-stuff...This is the insurance-approach and is valid for freelancers...Ich you use to work for lawyers without intermediation of any trrnaslation agency I rather recommend you to establish the way the "original" text and the translation are to be stored in the future (hardcopy or harddrive or server or whatever) so in case of troubles you can show what´s been your part of the job...I´m now writing a research paper about manipulation of patent translations and believe me, I think this´s gonna be a important issue in the future.


[Edited at 2009-04-27 13:43 GMT]


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James_xia  Identity Verified
China
Member
English to Chinese
+ ...
Just ignore it, pls May 4, 2009

"[Translator] will indemnify [Agency] against all damages, losses, liability or expense that [Agency] may suffer or incur as the result of any breach of this Section 7."


This is obviously an overlord clause. None of the translators can afford the 'whole of damages, or losses'..for any reason that may have on the part of the company. If this comes true, no one can work in the profession, just like a doctor in surgery.:)


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