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Opinion on a clause for confidentiality agreement
Thread poster: Cecilia Coopman, M.A. in Translation

Cecilia Coopman, M.A. in Translation  Identity Verified
United Kingdom
Local time: 05:53
English to Spanish
+ ...
Feb 4, 2008

This is a clause for a standard agreement that a (very respectable) agency in the UK has asked me to sign; but I am not really sure about it.


"The Translator shall indemnify XXXX and its directors from and against all costs, expenses, loss or damage arising directly or indirectly from a breach by the Translator of the terms of this Deed."

What is your opinion? Would you agree to sign this?

Thanks.

Cecilia

[Edited at 2008-02-04 18:49]


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Paul Merriam  Identity Verified
Local time: 01:53
Member (2008)
Russian to English
+ ...
Things to discuss with a lawyer Feb 4, 2008

Perhaps you ought to talk to a lawyer. Some things to discuss with the lawyer:

You're only being asked to indemnify them against a breach by you of the document. (If you were being asked to indemnify them against anything related to the translation, it would be a different matter.) Do you plan to breach it?

That said, take a look at the other clauses. Are any of them vague and subject to interpretation about whether a "breach" has occurred?


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The Misha
Local time: 01:53
Russian to English
+ ...
up to the extent of any monies due you Feb 4, 2008

I would never sign anything like this without an important qualification, namely, that your total liability may not under any circumstances exceed the amount of any monies due you from the agency. This should be fairly acceptable.

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ViktoriaG  Identity Verified
Canada
Local time: 01:53
English to French
+ ...
Also Feb 4, 2008

The Misha wrote:

ur total liability may not under any circumstances exceed the amount of any monies due you from the agency.

[/quote]

I would also add that the amount due for such a breach should correspond to something specific (i.e., reprinting costs of a pamphlet, etc.) and that the translator can request proof of such amounts. That is, the agency cannot refuse to pay for your services just because there was such a breach - they would have to demonstrate how much the breach has cost them, and they would not be entitled to withhold more than that amount.


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Anjo Sterringa  Identity Verified
Spain
Local time: 06:53
Member (2003)
English to Dutch
+ ...
Restrict your liability Feb 4, 2008

The Misha wrote:

I would never sign anything like this without an important qualification, namely, that your total liability may not under any circumstances exceed the amount of any monies due you from the agency. This should be fairly acceptable.


Agree, only I would restrict it to the value of the job.
Also used by really respectable agencies.


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Derek Gill Franßen  Identity Verified
Germany
Local time: 06:53
German to English
+ ...
Taking responsibility for damage YOU cause Feb 5, 2008

The Misha wrote:

I would never sign anything like this without an important qualification, namely, that your total liability may not under any circumstances exceed the amount of any monies due you from the agency. This should be fairly acceptable.


I would rather not say much about the clause in question, except that it might be superfluous.

If you (or anyone, for that matter) causes damage to another, unless you are not at all at fault, most legal systems have mechanisms in place to ensure that the damaged party is compensated, i.e., you will have to pay the damages.

Think about this: Should a manufacturer of a soft-drink costing $1 be limited in the amount of damages it should pay to that same $1, if it were to produce faulty product that lead to the death or lifelong disability of a customer?

If one is able to negotiate an agreement that limits your liability to the extent suggested by Misha, then great - but that would be quite a bit "more" than what is provided for by most legal systems.

If in doubt, ask a lawyer you trust. Otherwise, you might want to take a look at an article I once wrote about this and similar topics (cf. http://www.proz.com/translation-articles/articles/554/ ).


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Anjo Sterringa  Identity Verified
Spain
Local time: 06:53
Member (2003)
English to Dutch
+ ...
Product vs service, specific result vs best of your ability Feb 5, 2008

I do not think the softdrink example is valid - a freelancer provides a service to a larger entity, which in turn has a duty to check the translation provided by the freelancer, as opposed to just taking the extra money and pass its liability on to the freelancer.

Furthermore, the softdrink is a product and liability for products is very much regulated. Translation is a service and it will be more difficult to proof that this service has caused specific damage - also the obligation of a translator is not to deliver a specific result, but to perform to the best of his/her ability.

I must say that the most amazing exclusions of liability are found in software licences, just an example ...
LIMITATION OF LIABILITY AND REMEDIES.
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF XXX AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (...) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S. $5.00. (...)

If a translation agency tried to make me liable in its general conditions, this would not inspire any confidence in the agency, as just how much would they think they could get from a freelancer in case of a really big mistake in a medical translation for example? I would like to think any international agency has a solid liability insurance in place, just in case.

However, I do agree that, apart from what the agreement says, in each jurisdiction there may be mandatory rules about the extent of your liability.


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Renée van Bijsterveld  Identity Verified
Netherlands
Local time: 06:53
Member (2007)
English to Dutch
+ ...
agency is liable Feb 5, 2008

While the translator should of course do anything in his/her power to avoid mistakes, I think the agency is ultimately liable: the agency chooses the translator and should take care of the proofreading process. So any mistakes made by the translator should be filtered out/corrected by the proofreader, who is, also appointed by the agency.
Or is this too simple?


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tectranslate ITS GmbH
Local time: 06:53
German
+ ...
You are liable for the quality you produce Feb 5, 2008

ReneevB wrote:

While the translator should of course do anything in his/her power to avoid mistakes, I think the agency is ultimately liable: the agency chooses the translator and should take care of the proofreading process. So any mistakes made by the translator should be filtered out/corrected by the proofreader, who is, also appointed by the agency.
Or is this too simple?

I'm afraid that is too simple because it effectively means the freelancer can deliver any old junk and it's the agency that has to take the heat. Not fair, in my view.

Regarding proofreading: Anything but a cursory check for obvious mistakes like number errors, omissions etc. is above and beyond what you can expect anyone to do for free.

And a lot of the end clients that I know refuse to pay for a thorough proofreading on the grounds that the translation should be free from any major defects in the first place. Unfortunately, they've got a point there. It's a bit hard to argue that a translation is naturally crummy and always requires proofreading and editing to be usable...

Benjamin


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Derek Gill Franßen  Identity Verified
Germany
Local time: 06:53
German to English
+ ...
Personal liability Feb 5, 2008

anjoboira wrote:

I do not think the softdrink example is valid - a freelancer provides a service to a larger entity, which in turn has a duty to check the translation provided by the freelancer, as opposed to just taking the extra money and pass its liability on to the freelancer.


I respectfully disagree. The agency, in your example, has the same obligation to its clients as you do to the agency.

anjoboira wrote:
Furthermore, the softdrink is a product and liability for products is very much regulated. Translation is a service and it will be more difficult to proof that this service has caused specific damage - also the obligation of a translator is not to deliver a specific result, but to perform to the best of his/her ability.


Again, I respectfully disagree - your translation is a product, not a service (at least in most jurisdictions). You have a copyright on your product, not on your ability to translate.

anjoboira wrote:
I must say that the most amazing exclusions of liability are found in software licences, just an example ...
LIMITATION OF LIABILITY AND REMEDIES.
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF XXX AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (...) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S. $5.00. (...)


People and companies write the darndest things - that doesn't make them right or the things they claim valid though.

anjoboira wrote:
If a translation agency tried to make me liable in its general conditions, this would not inspire any confidence in the agency, as just how much would they think they could get from a freelancer in case of a really big mistake in a medical translation for example?


Just because you cannot pay what you owe, does not mean you do not owe what you cannot pay.

anjoboira wrote:
I would like to think any international agency has a solid liability insurance in place, just in case.


Do you?

anjoboira wrote:
However, I do agree that, apart from what the agreement says, in each jurisdiction there may be mandatory rules about the extent of your liability.


You see, in most places in the world, you actually are responsible for the mistakes you make.

I enjoy the discourse, but if you do not believe me (and why should you?), please consult a lawyer you trust.


[Edited at 2008-02-05 14:11]


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Renée van Bijsterveld  Identity Verified
Netherlands
Local time: 06:53
Member (2007)
English to Dutch
+ ...
liability to the agency Feb 5, 2008

tectranslate wrote:

I'm afraid that is too simple because it effectively means the freelancer can deliver any old junk and it's the agency that has to take the heat. Not fair, in my view.

This may not be fair, but maybe the agency did a bad job in selecting its translators. The agency sells a product and should make sure the product it delivers is ok.

Of course I have a liability to the agency: if I deliver a really bad translation and the agency wants me to implement necessary changes or wants me to pay for this work, I'll agree, but I don't really agree that I should pay for someone dying because of a typo (this seems to me a responsibility of the agency or the client).

And I'm not saying proofreading should be done for free: I guess most agencies have a margin for proofreading. If they think they can do without, it's there choice.

I don't want to argue that translations are naturally crummy, on the contrary I'll do anything to prevent getting errors into or leaving errors in my translations, but unfortunately very few of us are always perfect.


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tectranslate ITS GmbH
Local time: 06:53
German
+ ...
Well... Feb 5, 2008

...I guess that's why lawyers will never be out of work. Right, Derek?

B


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Derek Gill Franßen  Identity Verified
Germany
Local time: 06:53
German to English
+ ...
Snide lawyer remarks... Feb 5, 2008

tectranslate wrote:

...I guess that's why lawyers will never be out of work. Right, Derek?

B


hehe - i was thinking the same thing actually.


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xxxJPW  Identity Verified
Local time: 05:53
Spanish to English
+ ...
<b>And the rest...<b> Feb 5, 2008

Lawyers, taxmen and undertakers.

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MariusV  Identity Verified
Lithuania
Local time: 07:53
English to Lithuanian
+ ...
it is too abstract Feb 5, 2008

Cecilia Coopman, M.A. in Translation wrote:

This is a clause for a standard agreement that a (very respectable) agency in the UK has asked me to sign; but I am not really sure about it.


"The Translator shall indemnify XXXX and its directors from and against all costs, expenses, loss or damage arising directly or indirectly from a breach by the Translator of the terms of this Deed."

What is your opinion? Would you agree to sign this?

Thanks.

Cecilia

[Edited at 2008-02-04 18:49]


In my opinion, if you put a signature on this, your liability is "unlimited". This clause shall be more specific as "all costs, damages, etc." can mean millions. Even if it is a very serious agency, I'd not put any signature (just on principle) on a paper where I have at least a small "?". I'd try to clarify all that out.


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