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Should I sign this? ("INDEMNIFICATION; EQUITABLE RELIEF." Supplier shall reimburse...)
Thread poster: NancyLynn

NancyLynn
Canada
Local time: 06:51
Member (2002)
French to English
+ ...

MODERATOR
Mar 17, 2009

INDEMNIFICATION; EQUITABLE RELIEF. The Supplier shall reimburse and indemnify XXX for any losses or damages incurred to it as a result of any breach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by the Supplier, and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach thereof.

I'm not sure what this really says; could anyone learned in legalese help me here?

Thanks!

Nancy

[Subject edited by staff or moderator 2009-03-17 15:47 GMT]


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Roy Williams  Identity Verified
Austria
Local time: 12:51
German to English
I wouldn't Mar 17, 2009

From what I've come to understand from other freelancers, a translator should be/agree to be liable for the cost of the translation itself. This claus sounds like the client wants to hold you responsible for anything

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xxxPRen
Canada
Local time: 07:51
French to English
+ ...
Not learned in legalese but.... Mar 17, 2009

Nancy Lynn Bogar wrote:

INDEMNIFICATION; EQUITABLE RELIEF. The Supplier shall reimburse and indemnify XXX for any losses or damages incurred to it as a result of any breach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by the Supplier, and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach thereof.

I'm not sure what this really says; could anyone learned in legalese help me here?

Thanks!

Nancy


I'd worry about "appropriate equitable relief"! If not money, what? (your house? your first born?). Yikes!
I've seen other translators recommending amending a clause like this to say that you are liable for the agreed upon price of the translation, and nothing more. Plus, if this is for an agency, where's their liability?


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Rebekka Groß  Identity Verified
Local time: 11:51
English to German
heavy stuff Mar 17, 2009

Hi Nancy

It sounds like they're going to strip you down to your shirt if money isn't enough. Like PRen I'm wondering if they want your house, maybe put you in jail - though how the latter is going to help them if you're in breach of their conditions I don't know.

Can you perhaps ask the potential client themselves for clarification?

Whether or not you should sign it depends on many factors so it's hard to just say yes or no.

Take care

Rebekka



[Edited at 2009-03-17 15:36 GMT]


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kimjasper  Identity Verified
Denmark
Local time: 12:51
Member (2006)
English to Danish
+ ...
Upper limit and reciprocity Mar 17, 2009

I agree. I cannot afford to have any open-ended commitments or risks in my contracts. I always limit my liability to the invoiced amount of the order that any issue may be related to. Also, I look at the commitments the agency is requesting from me and insert similar commitments for the agency towards me where it makes sense.
In general, my experience is that many agencies are willing to deviate from their standard T&Cs. I have often been asked just to amend the contract, sign it and send it to them for countersignature. Often, the contract has been made a long time ago and it has been intended to cover and cover off the agency in all scenarious imaginable.

Kim


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Laurent KRAULAND  Identity Verified
France
Local time: 12:51
French to German
+ ...
Far too vague... Mar 17, 2009

and threatening as far as I am concerned, it leaves much room for interpretations at the only discretion of the client. Clarification - I mean restrictive clarification - seems to be more than needed!

I would not sign this except in the case I would be given some kind of "compensation":).

Laurent K.


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Mohamed Mehenoun  Identity Verified
Algeria
Local time: 11:51
Member (2008)
English to French
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Don't sign it Mar 17, 2009

Nancy Lynn Bogar wrote:

INDEMNIFICATION; EQUITABLE RELIEF. The Supplier shall reimburse and indemnify XXX for any losses or damages incurred to it as a result of any breach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by the Supplier, and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach thereof.

I'm not sure what this really says; could anyone learned in legalese help me here?

Thanks!

Nancy

[Subject edited by staff or moderator 2009-03-17 15:47 GMT]


Good reasons not to sign it:

1°/It is badly written !!

2°/ It is not concise and precise enough so that no abuse can be made.

3°/ Did you ever sign this crap for other clients ? Why should you do it for this one ?

Moh


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Giuseppina Gatta, MA (Hons)
Member (2005)
English to Italian
+ ...
No Mar 17, 2009

I never sign these kind of contracts and I never will.

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José Henrique Lamensdorf  Identity Verified
Brazil
Local time: 07:51
English to Portuguese
+ ...
I had a different experience Mar 17, 2009

kimjasper wrote:
In general, my experience is that many agencies are willing to deviate from their standard T&Cs. I have often been asked just to amend the contract, sign it and send it to them for countersignature. Often, the contract has been made a long time ago and it has been intended to cover and cover off the agency in all scenarious imaginable.


The agencies where I pointed out issues that would infringe Brazilian laws (the destination country of the intended translations, incidentally, where I live) said that their agreements were carved in stone. They told me to choose between signing the agreements untouched, as they were, or forget about working for them.

After having read such agreements, I had the impression that the lawyers who write them charge like translators... per word! This is the only possible cause for such verborrhea. They cover the most absurd possibilities from all sides, with as much detail as one can "reasonably" invent.


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Astrid Elke Witte  Identity Verified
Germany
Local time: 12:51
Member (2002)
German to English
+ ...
It is used by them out of context Mar 18, 2009

It is taken from a clause for a different kind of supplier and inappropriately inserted into their contract for translators. Perhaps they got it from a building contract that passed through their hands for translation.

No, of course you shouldn't sign it! It is irrelevant to you. However, if they ask you to sign it and you do, then that endangers the business relationship of mutual respect that you will need with them in order to get paid for your translation.


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MariusV  Identity Verified
Lithuania
Local time: 13:51
English to Lithuanian
+ ...
are those people nuts? Mar 19, 2009

In simple words it tells that "The Supplier is liable for ANY material damages and losses", let alone NOT ONLY material. Do you want to take an unlimited liability only God knows for what? If these people offer such a contract seriously, they should be sick.

[Edited at 2009-03-19 23:03 GMT]


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CFK TRAD  Identity Verified
France
Local time: 12:51
English to French
+ ...
What it means... Mar 29, 2009

... is that if you breach the contract (I mean for something else than a mistake in your translation), you'll be liable.

The equitable remedies and injunctions refers to actions (vs money). You cannot be sent to jail based on an equitable remedy / injunction...

The most common situation is to send the ultra-confidential source document about the end-client to its best competitor... Injunctions and equitable remedies are the means to make you stop this.

Nobody does it! You'd never do it! So what are you afraid of?

Another typical situation refers to the "samples of translations"... where the end client happily discovers top confidential clauses of their new contracts on the translator's profile... Great, isn't it?

Here again, nobody does it, you would not do it at all, so what are you afraid of

Last great situation: the contracts clearly states that you are NOT entitled to outsource. But you ask one of the friend of a friend of your neighbour to help you with the translation, fro any reason. You're not lucky, the friend of a friend of your neighbour unfortunately publishes it on his/her Webpages... or you have not read the contract carefully, and you write your PM "Well, don't worry, I have three people work overnight with you project...".

Outstanding, no?

In such instances, asking for money means nothing (we all suppose you have a professional liability insurance, so this amount will be paid anyway). What the client wants is YOU to stop displaying and disseminating confidential information. Full stop. So they make it clear that they reserve the right to request an injunction from the Court, to make you delete this information from you web pages.

I insert it in the contracts I have my freelancers sign! My clients are law firms, and I'm not about to take the risk to have confidential documents "wandering around" the Internet. I don't see what's outrageous in this clause. Your job makes you the recipient of critical information, and all that's requested is you to bear the responsibility of these information once they're under your control.

I'd rather ask them a disclaimer for information captured on the Internet (via email, FTP transferts, etc.).

Just one point: lawyers are not paid per word. And the contract is pretty well drafted (I speak as a lawyer indeed)...
Last point: Are any of the fellow who mention that the contract is bad written specialised in legal translation???

Best,

CFK, PhD, JSD


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Laurent KRAULAND  Identity Verified
France
Local time: 12:51
French to German
+ ...
What is "outrageous" in this clause... Mar 29, 2009

FORMATION CFK wrote:

I don't see what's outrageous in this clause. Your job makes you the recipient of critical information, and all that's requested is you to bear the responsibility of these information once they're under your control.

CFK, PhD, JSD


is that:

1) the average translator does not understand it right, which leads to speculations and to threads like this one (except in the case you [generic] have a lawyer at hand to explain it to you);

2) the average PM does not seem to have a clue about the correct meaning of the clause either and simply passes it on to outsourcees and tells them not to worry (curious if they don't understand the clause themselves);

3) the kind of situation described above (as per respecting confidentiality) is/should already covered by general agreements, quality standards and general contracts.

4) it gives a general (subjective) impression that the translation industry mainly consists of "you-vs.-us" dealings;

5) related to 4: it gives the general (subjective) impression that such contracts are purposedly written in obscure sentences in order to give the outsourcer all possibilities and every possible interpretation about said possibilities while outsourcees are actually defenceless ("leonine contracts").

Laurent K.


[Edited at 2009-03-29 17:17 GMT]


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Luis Arri Cibils  Identity Verified
Local time: 05:51
Member (2003)
English to Spanish
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On contracts, Law and Equity Mar 29, 2009

ScottishWildCat wrote:

is that:

1) the average translator does not understand it right, which leads to speculations and to threads like this one (except in the case you [generic] have a lawyer at hand to explain it to you);

2) the average PM does not seem to have a clue about the correct meaning of the clause either and simply passes it on to outsourcees and tells them not to worry (curious if they don't understand the clause themselves);

3) the kind of situation described above (as per respecting confidentiality) is/should already covered by general agreements, quality standards and general contracts.

4) it gives a general (subjective) impression that the translation industry mainly consists of "you-vs.-us" dealings;

5) related to 4: it gives the general (subjective) impression that such contracts are purposedly written in obscure sentences in order to give the outsourcer all possibilities and every possible interpretation about said possibilities while outsourcees are actually defenceless ("leonine contracts").

Laurent K.


[Edited at 2009-03-29 17:17 GMT]

Dear Laurent,

First, let me state, as a full disclosure, that I agree with CFK’s statement, and that I am also a lawyer. Also as full disclosure, the pronoun “you” has been used in a generic sense.

I have received and signed several of those agreements containing an equitable relief clause such as the one quoted. In fact, the most controversial and dangerous aspect for a transalator of the quoted clause is the following:

The Supplier shall reimburse and indemnify XXX for any losses or damages incurred to it as a result of any breach by the Supplier of this Agreement.

Another poster on this thread stated that “a translator should be/agree to be liable for the cost of the translation itself”. I have no qualms as to the “should agree” part, but certainly the “should be liable" part is questionable.

Assume you go to a doctor’s office and the doctor, without asking you whether you suffer of high blood pressure or looking at your file that clearly indicates that you do suffer of HBP, indicates you to take a medication that can cause grievous damage to a person suffering og HBP. Trusting your doctor’s expertise you take the prescription and as a result you spend a few weeks in the hospital, cannot even get close to a computer to translate for months, and require therapy for years to come. You sue the doctor for malpractice. He responds: "I am sorry, I screwed up. Here you have the amount you paid for the office's visit and the cost of the medication. Will that settle the lawsuit? Would you be satisfied as being fully compensated for the harm caused?

Of course, there are many aspects pertinent to the translation profession that are different to a medical practice that might imply a different level of liability. Further, most translators have the perfect defense, “dry as a turnip”, to avoid being sued. But it is still possible to be held “unlimitedly” liable by the part of the clause I mentioned.

On the other hand, equitable relief can be obtained only for breaches that I have full control. Further, my only “liability” is to subject myself to a court order. I will not be penalized unless I willingly disobey the court’s order.

Confidentiality is just one one of the areas of a contract that may be breached and require the request of equitable relief. Other examples:

1. You translate a book, under an agreement that states you transfer the copyright to the translation to the author for the payment of a fixed fee and, maybe, royalties. The translation is published and is a humongous success. Yu are so proud of your translation that you put a link to it on your website. As you do not retained the copyright, this is illegal. You are caught in time, no money damages have been caused, no loss on the sale of the translated book. The author files a lawsuit requesting a court to order you to stop putting the translation on your website.

2. No solicitation / non-compete clauses: You agree in the contract that within a given time after an agency's diclosure to you of the identity of a client you would not contact the client. You do not comply. The end-client, happy with the agency, informs them what you are doing. The agency goes to court asking it to order you to stop contacting the agency’s clients. If you follow the order, nothing happens to you. If you disobey the order you can land in jail. Again, you have the chance to comply. And you can be sued even you have not yet caused any money damages, no one has yet accepted your services. But, should the agency wait until some of their original clients do?

3. You sign a translation agreement committing yourself to destroy all copies of the document, the translation, glossaries, even any TM generated during the translation, You do not do so. Again, a court, if you have signed a contract allowing for equitable relief, can order you to destroy your TM (the pertinent parts). If you don’t do it, and disobey the court order, you can land in jail.

Cleraly, Laurent, that we all would like that contracts were written in plain English. But this clause is quite clear. Indeed, itr refers to "equitable relief", but it is a technical document, using technical language. It harks back to the times that anglosaxon law was gestated. It refers to the distinction between Law and Equity.

We all “sign” contracts on a daily basis, even when we go to McDonald’s and order a BigMac with fries. Written contracts do not intend to make an “us v. them” world. To the contrary, they try to avoid precisely that, setting forth the rules of the game.

Clealy, nobody shoulod sign a contract that he or she does not understand. But often, to write on a technical issue, we must use technical words. And, of course, “plain English” is the goal.

Best,

Luis


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Laurent KRAULAND  Identity Verified
France
Local time: 12:51
French to German
+ ...
General Terms & Conditions Mar 30, 2009

Thanks for the clarification, Luis.

Anyway, I will think seriously about signing such contracts on the very day the CEO (or head, or any person of authority) of an agency will accept to sign my GT&C
  • , which are by far not so intricated!

    And it won't be a matter of "us vs. you" either, just some useful precautions taken on my side in order to avoid misconceptions about my work, my role or my respect of confidentiality.

  • without moaning, complaining or cursing

    Laurent K.


    [Edited at 2009-03-30 11:44 GMT]

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