Just repost this in English: mainly directed to colleagues from USA or with experience regarding agencies in USA and legal matters. Is it legally allowed that an agency pretends to lower rates a 20% for the rest of a project - giving the option to accept or not? There is a contract existing with a fixed rate for the project.
Would appreciate your answers at the shortest as I have to provide my answer...
Thanks for your help!
Kornelia
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Nicole Schnell United States Local time: 13:19 Member English to German + ...
No. It's a breach of contract.
Jan 29
It would only be acceptable if a flat fee for a particular project has been negotiated and the project turns out be, say, 5000 words less than expected. Then the flat fee needs to be renegotiated. Lowering rates per word or per hour however is out of the question.
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Thanks Nicole, this is helpful! I should have mentioned before that in the contract no exact word count is mentioned and the project was supposed to be around 194.000 words, we now already have managed over 250.000 and there is work for at least 1 month more. The client obviously did a bad calculation and now lowered the rate with the agency a 20% for the rest of the project. All of this by information of the agency that wants to "pass on" the discount. Obviously there is no way to see whether this information is true and I would assume that arrangements between the agency and the client do not have to do with us translators (it is a team of around 15) at all. But I do not know American legislation on behalf.
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Eleftherios Kritikakis United States Local time: 15:19 Member (2003) Greek to English + ...
Theoretical vs. arguable
Jan 29
Theoretically it sounds like a breach of contract. However, if the case goes to small claims court or similar, the end client will argue about making an error and correcting the error before the final delivery of the entire project, which had an unpredictable wordcount, and the agency will argue that on the basis of the client's error, they inherited the error and they also have the right to re-negotiate the contract because the project itself changed (the wordcount changes every day in this project).
Do this: re-negotiate the contract, tell them to forget the "fixed fee" because the wordcount is not fixed either and the project itself has changed from the original agreement, and that your fee will be X.X per word according to the final wordcount at the end of the project. That's what's considered reasonable in such cases.
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Phil Hand China Local time: 04:19 Member (2011) Chinese to English
If it's not all written down, there's room for argument
Jan 29
If you've already done the number of word that you expected to get, and been given the rate originally agreed for those words, I think Eleftherios is right that the agency would have a good argument to say the original project has finished, this is an extension, and they want to renegotiate the rate for the extension.
I personally would make the quality argument here rather than the legal argument: you've just successfully completed 250,000 words for an agency that they're apparently happy with. Translators like you don't grow on trees. Does the agency really think it's worth the drop in rate to risk another translator, who may not be up to your standard, or who at least will not have the familiarity with terminology that you've gained over the past few months?
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Bernhard Sulzer United States Local time: 16:19 English to German + ...
not without your approval (acceptance)
Jan 29
Kornelia Berceo-Schneider wrote:
... in the contract no exact word count is mentioned and the project was supposed to be around 194.000 words, we now already have managed over 250.000 and there is work for at least 1 month more. The client obviously did a bad calculation and now lowered the rate with the agency a 20% for the rest of the project. All of this by information of the agency that wants to "pass on" the discount. Obviously there is no way to see whether this information is true and I would assume that arrangements between the agency and the client do not have to do with us translators (it is a team of around 15) at all. But I do not know American legislation on behalf.
Hi Kornelia.
You are right that, in a legal sense, arrangements between the agency and the end client have nothing to do with you or the other translators. You agreed to take on a job at a rate that was, among other things, based on the approximate word count (original or target I'd like to know). That arrangement is between you and the agency. Changes can occur but usually, as Nicole has pointed out, only if the word count turns out to be significantly lower, not more.
The changes you describe would cause me to specify new terms to the agency for completing the additional work. If the agency doesn't accept, I would only work to the approximate word count and respectfully decline the additional work. That's the only way to make sure you don't get taken advantage of. But the decision is yours. If you feel you need the additional money and you are willing to compromise for it, then you might decide to accept the rate.
I probably would not.
No matter what you decide, they will have to pay you as agreed for the (approximate) word count (portion) you agreed to translate. They wouldn't have any legal grounds to pay you less or refuse payment for that. If they did, then it would become a legal issue and they would be in the wrong - as long as you have a written PO or contract with them.
I wouldn't be too concerned with the legal aspect here (so far). It's you that will or will not accept the lower rate. If you accept it, I don't see how that could be illegal.
It's a bit different if the agency is lying and has, for example, not really re-negotiated the new rate but simply wants to deliver the bigger job for the price they locked in with the end client. It could be the agency's fault not to realize how big the job was, it could be the end client trying to get more for less by giving a very conservative approximate word count. Not sure what is really meant by "bad calculation" - was the entire original text (approximate word count) already given to the agency before the start of the project or is the end client adding text?
In the first case, I would expect a responsible agency to make sure they have an accurate original word count and not just an approximation. And even if we're just talking approximation (of original or target words), the agency should have made sure they had a fairly accurate count.
In the latter case, a responsible agency will negotiate a new contract, and I don't see any reason for major discounts. Something is certainly wrong here. If the entire text was provided before the beginning of the project, a responsible agency would have been able to determine and would have determined a reliable / accurate word count of the original text or at least a rate that wouldn't be changed if the text becomes longer.
It's possible the "less than perfect/responsible" agency had agreed to a certain fee for the approximate word count of 194.000 (possibly a number they simply accepted from the end client) but that in reality, they simply accepted the job for whatever the word count could/would be - to get the job. So they are not negotiating for the additional work. To make sure they don't lose any money on this job (after realizing the real scope of the project) by paying translators for the additional work at the negotiated rate, they have to lower the rate.
They'll find somebody who will do it. It doesn't have to (probably shouldn't) be you.
HTH
Bernhard
[Edited at 2012-01-29 06:44 GMT]
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Nicole Schnell United States Local time: 13:19 Member English to German + ...
I agree with the quality argument!
Jan 29
Phil Hand wrote:
I personally would make the quality argument here rather than the legal argument: you've just successfully completed 250,000 words for an agency that they're apparently happy with. Translators like you don't grow on trees. Does the agency really think it's worth the drop in rate to risk another translator, who may not be up to your standard, or who at least will not have the familiarity with terminology that you've gained over the past few months?
Now that Kornelia has turned into the absolute specialist and has become irreplaceable - she is supposed to be paid less? I don't think so either.
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Samuel Murray Netherlands Local time: 22:19 Member (2006) English to Afrikaans + ...
It is possible that they can...
Jan 29
Kornelia Berceo-Schneider wrote:
In the contract, no exact word count is mentioned, and the project was supposed to be around 194.000 words. We now already have managed over 250.000, and there is work for at least 1 month more.
How would you normally have known when this contract would have ended and when the next one would have started? I mean, you kept on translating, more than 50 000 words more than the original estimate, without regarding the extra words as a new project. So what would you have expected to happen that would signal the end of this project and the start of any other project?
It sounds to me like the client is trying to say "the current project has ended, and we're offering you a new project of the same type, at a 20% lower fee". If that was what the client had been trying to say, would you have accepted it?
If you refuse the 20% discount for the rest of the project, can the client simply say "okay, this is now the end of this project" and pay what they owe you and be done with it?
From a non-contractual point of view (simply from a fairness point of view), you have already received more than the amount of money that you had originally thought you would from this project, so it is not as if the client is trying to take away money that has been agreed upon, right?
[Edited at 2012-01-29 11:56 GMT]
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The Misha United States Local time: 16:19 Russian to English + ...
You are kind of missing the point here
Jan 29
The issue is not whether it is legal but whether they can get away with it - and let's face it, they very much can. In the US, the government does not ordinarily stick its ugly nose into private contracts (not yet anyway, thank God), so if you are hell bent on upholding the original contract, you'll have to sue them. Now ask yourself if you are prepared to go into the costly and time consuming litigation process over this, and don't forget to factor in that insignificant little detail that you sit half a world away from your party and that your very ability to bring a suit is predicated on your securing an entry visa into the US. Nope, I am not saying it's a fair world.
Personally, I would never, ever work for anything less than the rate we have agreed upon. Under the circumstances, I would definitely tell the client to take a hike and never work for them again. I would also badmouth them anywhere and however I could to inflict maximum damage possible on their business reputation. It may not be much, but it all adds up. But before you do just that, write them a nice letter spelling out the details of where, how and in what manner exactly you will badmouth them and what other adverse steps, if any, you plan to take. They may just decide it's not worth it and pay you in full.
I've said it before in other posts, and I will never tire of saying it again and again: every time you accept business from a place where you do not have immediate legal recourse (which for most of us essentially means outside of our own country of residence), you run a severe risk - much higher anyway than with a client that sits next door to you. This is the inevitable price you pay for a broader client pool and, potentially, higher income. Welcome to globalization, folks.
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Bernhard Sulzer United States Local time: 16:19 English to German + ...
what about the extra words you already translated? And what is your answer?
Jan 29
Kornelia Berceo-Schneider wrote:
... Is it legally allowed that an agency pretends to lower rates a 20% for the rest of a project - giving the option to accept or not? There is a contract existing with a fixed rate for the project.
Would appreciate your answers at the shortest as I have to provide my answer...
Thanks for your help!
Kornelia
The extra words you have already translated must figure into the agency's proposal and your answer.
When is the new rate supposed to kick in according to the proposal?
Everything you have translated before they ever talked about a new rate must be paid at the rate specified in the contract - or is there something in the contract that says otherwise?
Your update would be appreciated.
Bernhard
[Edited at 2012-01-29 18:16 GMT]
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First of all, thanks to everyone who responded to this post.
Bernhard, and someone else wanted to know when this "new rate" is supposed to be applied. Well, they are fair enough to tell us that everything translated so far is to be paid at original rate. And that from the date of tomorrow "and for the rest of the project" the new, reduced rate is paid for everyone who accepts. There is no mention of a new contract for a new project. It is, in their words, still the same project. Would believe they did not check out the actual word count and relied on the client´s information that obviously was an estimate. In words of the agency, the client "just realised" that this is ongoing for quite a while, at least another month. The project should originally and always as per information of the agency, have finished by the end of December. I may affirm that this agency is a bit of a mess due to things that happened over the past months and it also seems possible to me that they just underestimated the volume and did not negotiate well, wanting to save their part of the cake now. But it´s just suppositions.
It is true that the actual word count we already have translated has exceeded quite a bit the initial word count provided but obviously we spent more time with the project, too. No loss on that side as supposedly we´ll be paid the full rate for that.
Fairness is one of the points I easily get onto the barricades! I am perfectly aware I won´t go for a legal suit as I am really half a world away but I just wanted to get things clear and see where I am positioned. All of your information helped a lot on that. And the decision is now on my side, whether to go for the "secure work" or for integrity. Seems to be a bit of a general situation these days.
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Phil Hand China Local time: 04:19 Member (2011) Chinese to English
False choice
Jan 30
"whether to go for the "secure work" or for integrity."
It's not secure if the rate keeps dropping.
They might find new translators who can do just as good a job for less money. But often, agencies don't. And then they come crawling back to you with their tails between their legs. You - we - are the guardian of fair rates. And you make your bargaining position stronger, not weaker, by being firm.
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