in need of urgent advice regarding wording of contract
Thread poster: Susana Galilea
Susana Galilea  Identity Verified
United States
Local time: 19:34
English to Spanish
+ ...
Jun 24, 2004

Hi all,

One more question concerning the fine art of liability clauses

I am being considered for a project by a European client (direct client), and I have been sent a non-disclosure agreement containing the following paragraph:

"In the event of an alleged breach of the above-stated provisions, xxx shall be entitled to the payment of [some US$15,000 at the current exchange]. In addition, I shall remain liable for any additional damage suffered by xxx as a result of any such breach irrespective of the payment of any penalty and of any additional compensatory damages."

I replied I was in no position to sign liability provisions, and would gladly sign the non-disclosure agreement provided this paragraph is deleted.

My contact replied this is a standard document the company requires all freelancers to sign, and the paragraph can't be taken out.

I just ran this by my partner, and he pointed out the word "alleged" is preposterous, since it entails I would be held responsible if anyone simply claims such provisions have been breached. I could get back to my contact and ask to at least have that word removed, but from his previous response I doubt they will comply.

I have signed many a non-disclosure agreement in the States, and never came across such a paragraph. I am not at all surprised to see such agreements are more stringent in Europe...or are they?

I realize this is all run-of-the-mill procedure, yet I hesitate to sign such an agreement. However, my being able to take on the project depends on it and I would very much appreciate some feedback.

Thanks much,

Susana Galilea
Accredited Translator EUTI
sgalilea@ispwest.com
www.accentonspanish.com


[Edited at 2004-06-24 17:50]


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Evert DELOOF-SYS  Identity Verified
Belgium
Local time: 02:34
Member
English to Dutch
+ ...
Not with me... Jun 24, 2004

Susana Galilea wrote:

Hi all,

One more question concerning the fine art of liability clauses

I am being considered for a project by a European client (direct client), and I have been sent a non-disclosure agreement containing the following paragraph:

"In the event of an alleged breach of the above-stated provisions, xxx shall be entitled to the payment of [some US$15,000 at the current exchange]. In addition, I shall remain liable for any additional damage suffered by xxx as a result of any such breach irrespective of the payment of any penalty and of any additional compensatory damages."

I replied I was in no position to sign liability provisions, and would gladly sign the non-disclosute agreement provided this paragraph is deleted.

My contact replied this is a standard document the company requires all freelancers to sign, and the paragraph can't be taken out.

I just ran this by my partner, and he pointed out the word "alleged" is preposterous, since it entails I would be held responsible if anyone simply claims such provisions have been breached. I could get back to my contact and ask to at least have that word removed, but from his previous response I doubt they will comply.

I have signed many a non-disclosure agreement in the States, and never came across such a paragraph. I am not at all surprised to see such agreements are more stringent in Europe.

I realize this is all run-of-the-mill procedure, yet I hesitate to sign such an agreement. However, my being able to take on the project depends on it and I would very much appreciate some feedback.

Thanks much,

Susana Galilea
Accredited Translator EUTI
sgalilea@ispwest.com
www.accentonspanish.com


[Edited at 2004-06-24 17:24]


Hi Susan,

I signed many contracts in my life but I don't recall having agreed to such a contract clause ever.
I wouldn't sign it, no matter how tempting...
Better safe than sorry, in such cases.

Whatever you decide to do, good luck!


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shfranke  Identity Verified
United States
Local time: 17:34
English to Arabic
+ ...
Advice => Pass on that client Jun 24, 2004

Greetings.

Based on your description of the situation and that firm's stated business practices re the NDA, my advice is to pass on doing any business with, or on behalf of, that potential client.

That firm's atmospherics about its intractable policies for registering and engaging freelancee linguists do not seem to be "confidence-inspring indicators" (the contrary is more like it).

Hope this helps.

Regards,

Stephen H. Franke
(English Arabic,
Kurdish, and Farsi)
San Pedro, California


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Eva-Maria King  Identity Verified
United States
Local time: 20:34
German to English
It is preposterous.................!! Jun 24, 2004

Hi Susana,
being liable for an “allegation” is totally preposterous. I have seen many contracts, but this one does take the cake. In no way would I sign it and I have signed many contracts.
It was always my understanding that an accusation or “allegation” would have to be substantiated before any liability payments can be demanded. I would definitely leave this one alone, no matter how tempting.
Best regards and good luck,
Eva


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Susana Galilea  Identity Verified
United States
Local time: 19:34
English to Spanish
+ ...
TOPIC STARTER
yes, there's also that... Jun 24, 2004

Stephen Franke wrote:
That firm's atmospherics about its intractable policies for registering and engaging freelancee linguists do not seem to be "confidence-inspring indicators" (the contrary is more like it).


I must say I share your view on this, Stephen. Furthermore, my contact is a consultant who more likely than not has no saying on any of this, other than what his superior is telling him...

Thanks for the speedy replies, and for your support. It helps to know I am not just being overly cautious...anyone has a different view on this, better post within the next five minutes

Cheers,

Susana Galilea
Accredited Translator EUTI
sgalilea@ispwest.com
www.accentonspanish.com


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Anjo Sterringa  Identity Verified
Spain
Local time: 02:34
Member (2003)
English to Dutch
+ ...
Ridiculous Jun 24, 2004

I expect you took the right decision, but something like this in a non-disclosure agreement? Definitely over the top! I am quite fearless in signing all kinds of agreements, but I would not sign that one either!

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Henry Hinds  Identity Verified
United States
Local time: 18:34
English to Spanish
+ ...
No way Jun 25, 2004

Llámese José o Susana, mándalos... por un tubo.

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Jesús Marín Mateos  Identity Verified
Local time: 01:34
English to Spanish
+ ...
Have a go!! Jun 25, 2004

I'm sorry to disagree with all my colleagues Susana but my policy is always 'to have a go at it'. I know it may (in the worst scenario) have financial implications but I generally trust people and agencies and go ahead.
To be honest I have always disagreed with the wording and some clauses of the agreements (disclosure, service, etc) that I have signed and I am convinced if I had requested them to be changed I would be still be sitting at home waiting for the first translation.
The 'alleged' bit is tough but .......
Good luck.

[Edited at 2004-06-25 07:02]


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Nikki Scott-Despaigne  Identity Verified
Local time: 02:34
French to English
When push comes to shove... Jun 25, 2004

Coming late to this one, I know.

Suggesting liability may arise from an alleged breach is of course quite non-sensical. I do not imagine for one second that any court would find in favour of such a clause. Standard practice or not, best to forget it. Once a big machine gets going, the proverbial shit can hit the fan and you can be up to the neck in it, big time.

Nikki

[Edited at 2004-06-25 07:37]


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xxxBrandis
Local time: 02:34
English to German
+ ...
another solution to avoid trouble Jun 25, 2004

Susana Galilea wrote:

Hi all,

One more question concerning the fine art of liability clauses

I am being considered for a project by a European client (direct client), and I have been sent a non-disclosure agreement containing the following paragraph:

"In the event of an alleged breach of the above-stated provisions, xxx shall be entitled to the payment of [some US$15,000 at the current exchange]. In addition, I shall remain liable for any additional damage suffered by xxx as a result of any such breach irrespective of the payment of any penalty and of any additional compensatory damages."

I replied I was in no position to sign liability provisions, and would gladly sign the non-disclosure agreement provided this paragraph is deleted.

My contact replied this is a standard document the company requires all freelancers to sign, and the paragraph can't be taken out.

I just ran this by my partner, and he pointed out the word "alleged" is preposterous, since it entails I would be held responsible if anyone simply claims such provisions have been breached. I could get back to my contact and ask to at least have that word removed, but from his previous response I doubt they will comply.

I have signed many a non-disclosure agreement in the States, and never came across such a paragraph. I am not at all surprised to see such agreements are more stringent in Europe...or are they?

I realize this is all run-of-the-mill procedure, yet I hesitate to sign such an agreement. However, my being able to take on the project depends on it and I would very much appreciate some feedback.

Thanks much,

Susana Galilea
Accredited Translator EUTI
sgalilea@ispwest.com
www.accentonspanish.com


[Edited at 2004-06-24 17:50]
Hi! take the work, and deliver at 2 pages everytime and get a written approval. Since the customer is approving on smaller volume in a large project, there would be no two ways about it. He would have to read those 2 pages at a time say Ok to get the next delivery. I had an issue along these lines. I could manage this way. Finally my customer was getting what he wanted and okaying before he receives the next shipment. But this routine can also get real boring.
Good luck
brandis


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Edward Potter  Identity Verified
Spain
Local time: 02:34
Member (2003)
Spanish to English
+ ...
Many good suggestions here Jun 25, 2004

Hi Susana,

You are getting lots of good ideas here. A couple of my own:

1. Shut up about it, put a line through that clause, put your initials next to the modification, sign the contract, then send it to them.
They will now have your signed name on a contract of theirs. They will quickly forget that you changed a small thing in it.
This is basically putting the shoe on the other foot. Instead of you niggling about contract terms, they will now have to niggle with you and go through a lot of bother to talk to you, get you to send another copy (which you will not have time to do), and ultimately give up. But they have your signature and will likely send you the work if they like you.

2. Get errors and omissions insurance.

Take care,

Edward


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Narasimhan Raghavan  Identity Verified
Local time: 06:04
English to Tamil
+ ...
Don't sign Susana Jun 27, 2004

You were right in having doubts about this client. "Alleged" violation! And alleged by whom? This reminds me of a potential outsourcer in my country and his conditions. Out of the blue he sent me a proforma agreement which I was supposed to sign before being included in his panel of translators. In an obscure place he said that for more details, one can look at his Website and an hyperlink was provided for it. I clicked it and was amazed at some of his conditions. He was delightfully vague about the rates and just said they are good. But only on signing the agreement can I see his rate structure. And I cannot dispute it! He will not guarantee that I will be provided with regular jobs but on the other hand I should not refuse his job more than once as and when they are offered. Otherwise I will have to pay a penalty, which he will recover from any outstanding payments due to me from him. I have to wait 60 days for payment and then if the payment is delayed, I am entitled to resort to legal remedies (Thank you for small mercies!). Outstanding payments cannot be cited for refusing a new job.

I just sent him an email blasting him. I told him that I never wrote to him in the first place asking for work and that he got my contact details from somewhere and was proposing some collaboration. He needed to be polite but he was not. I told him that he was not ok in his head and that he would do well to make his conditions less unfriendly. Having done a good day's work, I could turn to more useful things and forget about him.

Another agency in New Delhi, for whom I used to work before moving over to Chennai, had this clause, whereby I am not supposed to work directly for his clients during the period I am on his panel and for 2 years after I ceased to be in it. When I asked him as to how I was supposed to know who his clients are (he cuts off any reference to his end clients in the jobs provided to us), he said that I should check with him each time I contact on my own a new direct client. And he was firm in not guaranteeing any steady flow of jobs. I flatly refused to sign this agreement and told him that I was not interested. The funny thing is, he didn't refer to this exchange at all since then and continued to give me work. It is another matter I am no longer working for him because of his tardy payments and his outrageous excuses for this lapse. For an invoice dated March 2001, he sent the cheque in November 2001 and cited the 9/11 attack on the World Trade Center. (His American client was not paying).

So, stand your ground Susana.

Regards,
N.Raghavan


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