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Opinions on clause in agency's contract please: "Penalty Clause"
Thread poster: Nicole Y. Adams, M.A.

Nicole Y. Adams, M.A.  Identity Verified
Australia
Local time: 16:04
Member (2006)
German to English
+ ...
Oct 9, 2007

Good afternoon,

I have just received a contract from a new agency, and as I have never signed a contract with an agency, I was curious what your opinion was on the following clause:

"Penalty Clause: You agree to pay an amount corresponding to double of the amount due to you as a penalty arising out of any breach and failure to fulfil the obligations in cases of delays or in cases of several claims, i.e. as a result of the failure to attend, in case of delay or if your language should not comply with the quality standards guaranteed by our Company, without prejudice to any further damage compensation.
The penalty payment can be deducted from any credit in your favour in our unquestionable opinion"

Is this an acceptable fairly standard clause or would you advise me not to sign it and move on? I have to admit I had to laugh when I read the "in our unquestionable opinion" part, so I think I may have answered my own question.

Many thanks for your opinions.

Nicole

[Edited at 2007-10-09 12:48]

[Subject edited by staff or moderator 2007-10-10 09:56]


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Margreet Logmans  Identity Verified
Netherlands
Local time: 07:04
English to Dutch
+ ...
Don't sign it Oct 9, 2007

...that's just my questionable opinion.

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RobinB  Identity Verified
Germany
Local time: 07:04
German to English
Crap English, I wonder about the agency... Oct 9, 2007

The penalty payment can be deducted from any credit in your favour in our unquestionable opinion"


What sort of utter crap is this? It's either a bad translation or bad law. At any rate, it doesn't exactly put this particular agency into a good light. Where is it domiciled?

The issue of contractual penalties or liquidated damages varies widely depending on the jurisdiction concerned. We don't have such clauses in our own contracts because a) the matter is governed (rigidly) by German law in any case, and b) there's little point in including provisions in a contract that are pretty much unenforceable in the first place.

If somebody delivers a bad translation to us, we just don't work with them again. By far the cheapest solution all round.

In your case, though, there's not even a "no fault" escape clause, so even if the agency (or its customer) causes a delay, you have to pay. Not exactly an equitable contract...

Robin


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Nicole Y. Adams, M.A.  Identity Verified
Australia
Local time: 16:04
Member (2006)
German to English
+ ...
TOPIC STARTER
Thanks Oct 9, 2007

Thanks for your replies. Pretty much confirmed what I thought.

Robin, the agency is domiciled in Italy. I just noticed that they are actually selling their clients pre paid cards for translations (e.g. purchase a pre paid card for 5000 characters and get 500 characters free).


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Samuel Murray  Identity Verified
Netherlands
Local time: 07:04
Member (2006)
English to Afrikaans
+ ...
Cross it out Oct 9, 2007

Nicole Y. Adams, M.A. wrote:
Is this an acceptable fairly standard clause or would you advise me not to sign it and move on?


Being penalised for all sorts of *measureable* things like late delivery is fine, but it should never exceed the amount that you are owed.


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 06:04
Dutch to English
+ ...
Ditto Oct 9, 2007

RobinB wrote:

The penalty payment can be deducted from any credit in your favour in our unquestionable opinion"


What sort of utter crap is this? It's either a bad translation or bad law. At any rate, it doesn't exactly put this particular agency into a good light. Where is it domiciled?

The issue of contractual penalties or liquidated damages varies widely depending on the jurisdiction concerned. We don't have such clauses in our own contracts because a) the matter is governed (rigidly) by German law in any case, and b) there's little point in including provisions in a contract that are pretty much unenforceable in the first place.

If somebody delivers a bad translation to us, we just don't work with them again. By far the cheapest solution all round.

In your case, though, there's not even a "no fault" escape clause, so even if the agency (or its customer) causes a delay, you have to pay. Not exactly an equitable contract...

Robin


Nothing to add, Robin is right - it is unquestionably utter crap


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RobinB  Identity Verified
Germany
Local time: 07:04
German to English
Cheap and n.... Oct 9, 2007

Nicole Y. Adams, M.A. wrote:
Robin, the agency is domiciled in Italy. I just noticed that they are actually selling their clients pre paid cards for translations (e.g. purchase a pre paid card for 5000 characters and get 500 characters free).


How tacky. Maybe that's why they can't afford good translations for their own documents....


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Beatriz Galiano
Argentina
Local time: 03:04
English to Spanish
+ ...
It doesn`t sound right Oct 9, 2007

Sounds to me like you are some kind of criminal...way too strong for the issue at hand. I would not sign it as they might stick to it, I do not see it as a nice way of starting a business relationship.

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French Foodie  Identity Verified
Local time: 07:04
French to English
+ ...
In the words of Monty Python... Oct 9, 2007

Run away! Run away!

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Claudia Krysztofiak  Identity Verified
Germany
Local time: 07:04
English to German
+ ...
You may lose potential customers Oct 9, 2007

by asking a lot of questions about such contracts and giving them your honest but polite opinion why you cannot sign something like that.

In such cases I usually make a suggestion how to phrase a contract I am willing to sign.

The agencies that reply to such mails and are willing to discuss and change their contracts usually are the ones worth working with (what a nice alliteration ).

The ones who do not react may very well be just a lot of time and trouble saved.

Not every potential customer is a desirable customer ...


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Astrid Elke Witte  Identity Verified
Germany
Local time: 07:04
Member (2002)
German to English
+ ...
I would not entertain them Oct 9, 2007

I only work with professionals.


Astrid


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Ms.Straus  Identity Verified
Slovenia
Local time: 07:04
Member (2007)
English to Slovenian
+ ...
My fifty cents Oct 9, 2007

I agree with pretty much everything said above. What bothers me most is 'unquestionable' and 'double amount'. You should politely reject them.

Somebody once tried to pull the same trick on me and I simply refused to sign. Because I was polite about it we are now working together and surprisingly we have a rather good relationship - without ANY contracts. They never mentioned signing anything again.

Anyway, any contract has to be fair to both parties and the contract you describe simply isn't. You should never sign a contract that puts you in a seriously submissive position (i.e. it's not equitable).

I find their trick with prepaid translation cute though


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Suzette Martin-Johnson
Canada
French to English
+ ...
No way Oct 9, 2007

Especially the part about the double amount you would owe if they decided you did something wrong!!

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ViktoriaG  Identity Verified
Canada
Local time: 01:04
English to French
+ ...
Say what? Oct 9, 2007

Not only would you waiver your right to be paid, but you would actually pay them if they simply don't like your style? That's how I understand it...

If you were to translate something into English and you used the word "customer" instead of "client", you can say goodbye to your pay - and pay up to compensate for it?

No way José!


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Charlie Bavington  Identity Verified
Local time: 06:04
French to English
Hmmmmm..... Oct 9, 2007

Ok, so it is undoubtedly badly worded. Badly translated, probably, presumably from Italian (?) (which may not be a good sign...)
BUT
if you want my humble opinion, it sounds to me like they just want their interpreters to show up, and they want their translations a) on time and b) not produced by babelfish or your teenage children.

I agree that the "double yer money" clause is a bit suspect, but I'm sure it's just meant to be a deterrent (which may or may not be legally enforceable).
And I would seek clarification of "unquestionable".

Yup, if they probably could use the clause to try not to pay for customer/client or folder/directory - that "quality" thing is obviously gonna be a grey area.

It's a question of letter versus spirit, and bad faith versus good, if you ask me. And that will only come across from your other contact with them. All other things being equal, I might be inclined to do a small job or two and seek how it goes....


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