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Who provides the contract? Freelancer or agency?
Thread poster: Hengky Chiok

Hengky Chiok  Identity Verified
United States
Local time: 22:31
Member (2008)
English to Indonesian
+ ...
Jan 3, 2008

Hi all

When contracting with an agency, most of the time who provides the contract? We as freelancers send our draft of contract for the agency to review and sign or the agency send their for us to review and sign?

I am not talking about direct client, but agencies.

And if it's the agencies who send the contract, how do we express disagreements with some of the conditions (e.g. indemnification, etc).

What's your experience?

Thanks for sharing.

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Renée van Bijsterveld  Identity Verified
Local time: 07:31
Member (2007)
English to Dutch
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Usually the agency Jan 3, 2008

In my experience it's usually the agency that sends the contract.

And in case of a disagreement on conditions: some are willing to reconsider, some say they will think about it but forget about it and send work anyway and some tell me to take it or leave it (in which case I usually leave it - that is, I do not sign so I do not get any more jobs).

I should add: usually agencies only send a contract once: at the beginning of the working relationship. For following work orders they only send a PO: rates have already been defined.

[Edited at 2008-01-04 08:08]

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Paul Merriam  Identity Verified
Local time: 01:31
Member (2008)
Russian to English
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Work it out Jan 3, 2008

If it's an agency you work with frequently and you know how they work, often it's done on a handshake or something similar. Something like, "Hey, I've got five pages by Wednesday, do you want it?" "Sure."

If it's an agency you've never worked with before, I recommend asking them about this during the initial contact. They may tell you they don't have a standard work order, in which case you can say something along the lines of, "Shall I send you mine?"

If they send you one and there's a clause you don't like (or they don't like some clause in yours), you can discuss it with them. They make a decision about whether removing the clause is worth working with you. You make a decision about whether leaving it in is worth working with them. If you can't come to a mutually-acceptable arrangement, they don't send you work and they don't pay you either. From your side, you aren't stuck with their undesirable provision but you also aren't getting any work.

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Parrot  Identity Verified
Local time: 07:31
Member (2002)
Spanish to English
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FWIW Jan 4, 2008

And if it's the agencies who send the contract, how do we express disagreements with some of the conditions (e.g. indemnification, etc).

Ach! That... before the client can even say, "I've got this text...", I've usually already made sure they knew my rates

In fact, they usually ask first. And if they don't, interrupting them at some point before any further commitment is made is part of being professional. For that matter, you can raise any other point about the contract for discussion before signing or refusing it.

Some agencies don't send contracts and just go ahead with Purchase Orders once prices are set. If you accept them, that's a binding contract for that particular job. And when you've worked with people for a long time and they say "start ASAP, this is urgent but I'm too busy right now, you'll get the PO tomorrow", just take it on trust and send a reminder if they forget the "tomorrow".

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ViktoriaG  Identity Verified
Local time: 01:31
English to French
+ ...
Good thing you asked Jan 6, 2008

I am not a lawyer and the following should not be interpreted as legal advice.

This is an excellent question. In fact, no matter what goods or services are sold, it is usually the seller and not the buyer who drafts the contract. Also, if any litigations should arise, the matter is to be handled by a court in the seller's country, not in the buyer's country.

The problem is that most of those who "do" translation didn't go to school to learn their trade, and even of those who did, most did not get appropriate training on the legal aspect of doing business. So, many translators only realize that they have to use a contract once they are already doing business, specifically when they are sent a contract to sign by their clients. Then they sign the contract and are happy they didn't have to draft it. Then they forget all about it until they get another one, which they sign and forget about. They eventually conclude that contracts are to be drafted by the client.

This is dangerous, not only because the client has the last say, but also because most of us don't have enough of a legal background to be able to interpret such contracts, especially those that were deliberately written in order to mislead the freelancer (we see examples of such misleading, or even illegal, clauses on this forum regularly). I am all for a contract written by the service provider. After all, you are selling a service and you want to have control over how you carry out and sell that service. So, it is only normal you draft your own contract. If the agency wants you to sign a separate contract drafted by them, no problem, but your contract should mention that if there are any discrepancies between the two contracts, yours shall prevail.

That it is an accepted practice for outsourcers to draft their contracts is OK, but it doesn't mean it's the only way to go and it certainly doesn't mean that that's the way things should be.

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James O'Reilly
German to English
+ ...
Registration Protocol Jan 7, 2008

I keep things sorted within my Registration Protocol:

A client version is derived and shared from this template using Google Docs
(Web 2.0 technology by the way).

[Edited at 2008-01-07 06:41]

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