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Service agreement
Thread poster: GabLuz
Local time: 02:24
English to Portuguese
Aug 25, 2007

Hi, folks.

Recently, I've applied for a translation job and then I took a test.
It was an easy test! Anyway, they've sent me a service agreement which I have to get it signed and sent them by next week.

My friends say this agreement is not a good idea, that's why I didn't talk to any lawyers yet.
I think I should talk to people who's really experienced in this field.

"This Agreement (hereinafter called the "Agreement") is made as of the ____ day of _____________ 20___
by and between
XXX Company, an Asian Company,
_______________________________________________________________________, located at _______________________________________________________________________________________________________________________________________________________________,
(hereinafter called the "Contractor").
WHEREAS XXX Company requires the services of the Contractor with respect to certain business projects undertaken by XXX Company on behalf of certain third parties (hereinafter called “Clients”); and
WHEREAS the Contractor has expertise in the area of services required by XXX Company and is willing to provide such services as a consultant to XXX Company;
NOW, THEREFORE, in consideration of the mutual agreements made herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
The Contractor agrees to be available from time to time for the rendition of services to Clients selected by XXX Company. Each such consulting engagement shall be separately designated as an “Assignment”.
The Contractor may accept and agree to perform an Assignment at the Contractor’s sole discretion. However, nothing herein shall obligate XXX Company to provide the Contractor with any minimum number of Assignments.
The Contractor shall perform the services to the best of the Contractor’s ability, experience and talent, and shall comply with all relevant ethical and professional standards.
The Contractor explicitly agrees and acknowledges that the Contractor is not a full or part time employee of XXX Company and that the Contractor is performing Assignments in the capacity of an independent consultant.
2.Payment for Services
XXX Company agrees to pay to the Contractor such amount as is mutually agreed upon by XXX Company and the Contractor in writing and in advance of each Assignment. No amounts other than those payable under this paragraph shall be payable by XXX Company to the Contractor, unless agreed to in writing and in advance. The Contractor shall be liable for any and all expenses, costs, and expenditures incurred in the performance of an Assignment, unless otherwise agreed in writing. The Contractor shall issue an invoice to XXX Company upon completion of an Assignment. XXX Company shall make payment to the Contractor within 45 days after receipt of the Contractor’s invoice.
The Contractor shall be responsible for the payment of any and all taxes to relevant taxation authorities, as well as the preparation and submission of all reports, returns, and remittances which may be imposed, requested, or required by such taxation authorities, or under any employment insurance compensation, social security, or worker’s compensation law, regulation or order.
XXX Company shall have the right to deduct any and all withholding taxes that may be required by relevant taxation authorities or under any employment insurance compensation, social security, or worker’s compensation law, regulation or order. The Contractor shall be responsible for informing XXX Company of any and all requirements to withhold such taxes, to the extent that the Contractor is aware of such requirements,
4.Term of Agreement
The initial term of this Agreement is two (2) years from the date of its execution by the parties hereto and thereafter shall automatically renew for additional two (2) year time terms until terminated as provided herein.
5.Non-competition provisions
The Contractor, for two (2) years after the completion of Contractor’s last project for XXX Company’s Client, shall not solicit any Clients, or their affiliates, employees, agents, representatives, or contacts for engagement as a full or part time employee or consultant, nor contact them directly regarding any services or any Assignment the Contractor is providing or qualified to provide to XXX Company .
The Contractor acknowledges and agrees that a breach of any of the agreements contained in this paragraph will result in irreparable and continuing damage to XXX Company for which there will be no adequate remedy at law and, in the event of such breach, XXX Company will be entitled to injunctive relief and/or a decree for specific performance, in addition to and without limiting any other remedy or right XXX Company may have (including monetary damages, if appropriate).
The Contractor agrees that in the performance of services hereunder, the Contractor will, both during and after the term of this Agreement, treat as proprietary and confidential (a) any information provided to the Contractor by XXX Company or Clients in connection with the performance of the services hereunder; (b) any and all information developed by XXX Company, at the request of its client, which is designated as confidential (collectively the “Confidential Information”). The Contractor shall use such Confidential Information solely and exclusively in connection with the performance of services under this Agreement. Further, the Contractor will not disclose any such Confidential Information to any unauthorized party for any reason or purpose whatsoever without the prior written consent of XXX Company, unless the Contractor is legally required to disclose such information by statute or regulation or in connection with any litigation or other legal proceeding; provided, however, that the Contractor will immediately notify XXX Company of any possibility that disclosure of Confidential Information may be required in connection with any such legal proceeding.
7.Equipment and Supplies
The Contractor shall be responsible for obtaining all equipment, supplies, or tools required to perform the services under this Agreement (e.g., computer, software, modem etc.).
8.Legal Rights to Assignments
The Contractor explicitly agrees and acknowledges that XXX Company holds exclusive rights to any and all Assignments performed by the Contractor, and that said Assignments are the sole property of XXX Company before, upon, and after completion. These rights may be transferred to any third party at any time by XXX Company at the sole discretion of XXX Company and without prior notice to the Contractor.
9.Restriction on Assignments
This Agreement is specific to, and is being entered into based upon the singular skills, qualifications and experience of the Contractor. The Contractor may not assign any rights or delegate any duties or obligations under this Agreement without prior written notice to XXX Company and receipt of XXX Company express written approval of such assignment or delegation.
The Contractor agrees to indemnify, defend, and hold XXX Company harmless from any liabilities, claims, or demands (including the costs, expenses, and attorney fees on account thereof) that may be suffered or incurred by XXX Company by reason of the service, acts, or omissions, or lack of services to be rendered or supplied by the Contractor on any Assignment.
11.Liquidated Damages
In the event that XXX Company receives substandard work from the Contractor and elects to use a third party to make the work usable (as determined and elected by XXX Company in its sole discretion), the costs incurred by XXX Company for making the work usable will be deducted from the payment originally agreed with the Contractor.
12.Right to Terminate Agreement
Should the Contractor violate any provisions of this Agreement, XXX Company shall have the right to terminate this Agreement upon twenty-four (24) hours’ written notice to the Contractor.
13.No Waiver of Rights
The failure of either party hereto to enforce any right under this Agreement shall not be construed as a waiver of that right, or of damages caused thereby, or of any other rights under Agreement.
14.Entire Agreement
This Agreement encompasses the entire agreement of the parties, and there are no other agreements or understandings related to its subject matter, either written or oral.
This Agreement may not be modified or amended except by an instrument in writing mutually agreed upon and executed by both parties hereto.
16.Governing Law
This Agreement shall be construed and interpreted in accordance with the laws of an asian country.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above."

I guess this contract might be dangerous for me.
Tell me what you think.

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patyjs  Identity Verified
Local time: 00:24
Spanish to English
+ ...
I don't know Aug 25, 2007

about clause 11.

It gives me the heebie-jeebies!

Is that normal practice?

Good luck

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Kevin Fulton
United States
Local time: 01:24
German to English
Fairly standard contract Aug 25, 2007

Clause 10 could be tricky -- basically if your translate a document such as an instruction manual and the instructions are mistranslated, and the end client suffers damages as a consequence, the agency will pass liability onto you. This is why many translators take out "errors and omissions" insurance.

Clause 11 means that if the agency has to hire someone to fix the translation, the cost of the revision will come out of your pocket. I don't think that's unusual.

Non-compete clauses are pretty standard -- they don't want you stealing customers.

You might want to have an attorney check it anyway, since some of these provisions may not be enforceable/applicable where you live.

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Textklick  Identity Verified
Local time: 06:24
German to English
+ ...
Careful! Aug 25, 2007

So it was an easy test? Is this is an 'easy' contract?

Please see

I refused to sign, thanks to peer comments.



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Local time: 02:24
English to Portuguese
Thanks. :) Aug 25, 2007

Thank you for your experience and your warning.

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United States
Local time: 00:24
English to Russian
+ ...
Nothing too bad in the areas that apparently worry you the most Aug 26, 2007

Standard and well-written. In terms of liabilities nothing in this contract would prevent me from signing it, except for a 2-year noncompetition clause - 1 year is standard, but that would only be bothersome in the event of a local agency. Otherwise, you are too far apart...

Why would anyone expect an agency not to protect themselves from a bad translator and a lousy job? I wouldn't trust such an agency. Short clause 11 is quite reasonable.

So far nothing unusual.

Those who practice stiffing will do so with or without the contract, this is always a gamble when you want to work for unknown and remote clients.

Now, what would be totally unacceptable for me is a 45 days payment term. This is a really huge risk, but then again, with or without the contract with the liability clause. You can produce a lot before even expecting a first payment.

You may want to negotiate a feedback within, say, 5 days confirming acceptance. Explain to them that you can not keep working without knowing that your job is "deemed fit for payment":-), ask what kind of a guarantee do you have not to be hit with "bad, bad translation, baby" 45 days after you sent it. As a matter of fact, this is how it goes between me and my clients - within a few hours/days, depending on the length of the job, they send me an email stating "invoice approved for processing", which means a written proof that the job had passed the editorial stage and I am getting paid in 30 days. In fact, all my liability clauses are much tougher. Believe it or not, I have never been stiffed and only once in my life punished with partial payment. Boy, did I deserve it! I messed up bad! After 10 years it still makes me feel so ashamed... I'd rather won't go into this in detail but let me tell you - that was a clear reason for an agency to have such clause in their contracts. Actually, I offered a full forfeiture of the payment and they still paid me some. I could not sleep until I did a small proofreading job for them for free on top of all:-)

It all depends on the honesty of the business you are dealing with. A contract is but a formality. What in reality could you do to an Asian company from Brazil:-(? What can they do to you except for stiffing? It's a gamble, always. Just don't play it until losing your pants in hope for a jackpot:-)

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Patricia Lane  Identity Verified
Local time: 07:24
French to English
+ ...
nothing terribly unusual Aug 26, 2007

I agree with IreneN - pretty standard stuff..

The only two things that I'd flag are:

1. the non-competition clause is too broad. Often, in the case of multinationals for example, agencies will have a contract with a division, a country, a single company within that conglomerate. In my reading, they push the boarders a bit much in this clause.
2. A definition of criteria by which a translation would be deemed sufficiently poor as to warrant reduced payment, delay by which this should be flagged, and applicable penalty scales.



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Tina Vonhof  Identity Verified
Local time: 23:24
Member (2006)
Dutch to English
+ ...
Don't get your hopes up! Aug 26, 2007

And then, after you have completed the test, agonized over the contract, and finally signed it, you may never hear from them again.

[Edited at 2007-08-26 23:06]

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United States
Local time: 00:24
English to Russian
+ ...
speaking of... Aug 27, 2007

Are you sure it is OK to provide the full agreement like this? I bet ya it has already been copied by some headhunters. It is good enough for a generic template. I'm not sure the outsourcer would appreciate it.

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English to Russian
+ ...
The contract is abusive. Aug 31, 2007

In my opinion. I was offered several contracts like this -- never signed any. The customer has all the rights, the translator has only responsibilities and liabilities.

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