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Would you sign this contract?
Thread poster: Minna Wood MITI (Purring CAT Ltd.)

Minna Wood MITI (Purring CAT Ltd.)  Identity Verified
United Kingdom
Local time: 21:41
English to Finnish
+ ...
Sep 21, 2004

A new client of mine has sent me their General Purchasing Condidions, which among others list the following clauses:

1. The deadline shown on the Order Form is IMPERATIVE. The subcontractor must make all reasonable efforts to guarantee a timely delivery. The subcontractor may request an extension of the deadline, if events that are beyond his will or control make such a delivery impossible. The subcontractor and XXX are bound to seek an equitable solution in such cases. In the event that an agreed or extended deadline is wilfully or negligently exceeded, without the advance agreement by XXX, then XXX reserves the right to accept a partial delivery against partial payment, or to refuse delivery of the entire work, at its choice. Such a refusal excludes the right to payment of the order and is without prejudice to any compensation that XXX may seek for incurred losses, which is set at a flat-rate amount of half the value of the translation, a strict minimum that may be increased if the loss incurred exceeds the flat-rate amount.

2. If a work does not meet the objective quality standards of XXX or its client, and if remediation measures by the subcontractor are not effective, then XXX can opt to accept a partial delivery against partial compensation, or to have modifications made by a third party at the original subcontractor’s expense, which are deducted from the value of the order, or to refuse the work in its entirety without compensation.

3. A subcontractor who accepts to carry out work for one of our customers automatically undertakes not to seek work directly from this customer, and he will not actively approach these customers for one year from the date of the last work carried out for this customer through XXX. This regulation does not apply, if subcontractor has rendered services directly to the customer prior to acceptance of an assignment from XXX, and if the subcontractor informs XXX of a past and/or current relationship with the customer prior to accepting the assignment. Any breach of this rule will automatically entail the payment by right of compensation to XXX. The amount of this compensation is set at the amount of business transacted by XXX with this customer in the twelve months preceding the breach, and with a minimum of 1250 EUR.

4. Unless expressly agreed to the contrary for any specific work, the subcontractor is liable for damages that are due to proven gross negligence in the work carried out by him, and XXX may hold the subcontractor liable in any case of professional misconduct.


Would you sing this?

Thank for your views!
Minna


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Yolande Haneder  Identity Verified
Local time: 22:41
German to French
+ ...
I woudn't Sep 21, 2004

This is a bit too much for me. I am not so keen on the money that I take such risks of 1. not beeing paid, 2. having to paid compensation to the agency if they don't like your translation or for any other problem they will find with you.
I am personnally not so hungry. I have enough other clients not to bother for such clauses.


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xxxLia Fail  Identity Verified
Spain
Local time: 22:41
Spanish to English
+ ...
It's all spelled out there all right! Sep 21, 2004

Minna Wood MITI (Purring CAT Ltd.) wrote:


4. Unless expressly agreed to the contrary for any specific work, the subcontractor is liable for damages that are due to proven gross negligence in the work carried out by him, and XXX may hold the subcontractor liable in any case of professional misconduct.


Minna


I'd be a bit wary, it's tough, yet the conditions are ones we kind of assume (timely delivery, suitable quality etc).

In regard to 4, unless you have professional indemnity insurance (and even then maybe), this one is a total no-no.


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Marijke Singer  Identity Verified
United Kingdom
Local time: 21:41
Dutch to English
+ ...
Proven gross negligence Sep 21, 2004

It is pretty standard. The problem with clause 4 is that proving gross negligence is very difficult. I'd ask how they propose to prove it. If it is an independent body and you are confident enough then maybe you should accept it. If, however, the agency or its customers will prove gross negligence, I wouldn't touch it. Too biased.

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RobinB  Identity Verified
Germany
Local time: 22:41
German to English
Gross negligence Sep 21, 2004

Ailish,

I'd point out that under the laws of most countries, you're liable for the consequences of gross negligence in any case, irrespective of what T&Cs may state.

Of course, the aggrieved party has to sue, so ultimately it's a matter for the courts to establish firstly whether gross negligence exists, and secondly the extent to which compensation - if any - is payable.

As far as "professional misconduct" is concerned, however, this is an extremely fuzzy concept that can surely only apply to regulated professions (not T&I) or to T&I who have voluntarily undertaken to abide by a conduct of conduct (and possibly not even then). So I'd delete that one, certainly.

Robin


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xxxLia Fail  Identity Verified
Spain
Local time: 22:41
Spanish to English
+ ...
Robin Sep 21, 2004

Hi Robin, the deletion you refer to, is it what I said???!!!!

RobinB wrote:

So I'd delete that one, certainly.

Robin


In reply to your reply: I personally wouldn't accept such a clause without having indemnity insurance. I know that I could be sued for negligence or gross misconduct etc, with/without insurance, and with/without having signed any such clause, but I would just feel a bit more relaxed.......even though I might wonder to what point I would eb covered.

The IOL or the ITI had a very interesting page that described 'degrees of translation quality', I'll see if I can locate it again:-)


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RobinB  Identity Verified
Germany
Local time: 22:41
German to English
Insurance Sep 21, 2004

Hi Ailish,

You'll have to read through the small print of the insurance contract very carefully indeed. Many E&O-type insurances actually exclude gross negligence (though again, it may well be for a court to decide what that actually is).

"The IOL or the ITI had a very interesting page that described 'degrees of translation quality', I'll see if I can locate it again:-)"

Yes please! This is such a subjective area, though I know plenty of people (including ourselves) have attempted to categorise it.

Another problem - as I see it - is that far too many translators appear to rely on their own liability exclusion clauses and think that's all they need, i.e. along the lines of "liability is limited to the value of the translation contract and consequential damages are expressly excluded". Looks nice, and I suppose it's comforting, but it's probably not worth the paper it's printed on.

Robin


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Minna Wood MITI (Purring CAT Ltd.)  Identity Verified
United Kingdom
Local time: 21:41
English to Finnish
+ ...
TOPIC STARTER
Thanks Everyone! Sep 21, 2004

I have suggested to my client to amend/delete these clauses and they agreed with it. So, all's well that ends well.

Minna

[Edited at 2004-09-21 18:14]


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