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strange contractual conditions..
Thread poster: xxxBrandis
xxxBrandis
Local time: 03:35
English to German
+ ...
Apr 7, 2007

Halo!
Following a long term co-operative issue this was one stipulation presented by a client, I have never worked before for him/her
"The present contract is not a contract of employment and in the event of cancellation for any reason whatever, no compensation or any sum other than the payment made to him/her for services rendered under the terms of the present contract shall be paid to the Translator."

I am sure a few of you have received the same. I guess the world is changing.

My answer was -
Would you then be able to organize 100% down payment and forget it, in case of the above terms. I am self employed and work in a group and we have a company form. Even as I do your translation, this condition afore mentioned is beyond any comprehension of any known trade ethics and known conventions.

I had wanted to inform and warm you up of such developments. Brandis


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xxxIreneN
United States
Local time: 20:35
English to Russian
+ ...
What seems to be the problem? Apr 7, 2007

You are guaranteed all payments under this contract pertinent to the job completed as of the date of termination but not entitled to the things implied for employees, including but not limited to:-): unemployment benefits, profit sharing in the event of, say, liquidation, severance pay, extended health coverage etc.

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Lawyer-Linguist  Identity Verified
Portugal
Local time: 02:35
Dutch to English
+ ...
Nothing strange about it ... Apr 7, 2007

Irene is right.

All the particular clause is doing is trying to make it crystal-clear you are not and can never be construed as an employee (with the associated rights and entitlements, in the event of termination).

No drastic changes afoot, is the type of clause I'd expect to see as a lawyer - and have seen for years - in outsourcers' contracts (could be drafted better, but that's not the issue)

[Edited at 2007-04-07 22:10]


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Andrea Riffo  Identity Verified
Chile
Local time: 21:35
English to Spanish
nothing strange II Apr 7, 2007

In everyday language, they are saying that they will pay you for the services rendered but that you are not entitled to the benefits and compensations awarded to in-house employees
  • if you cease to work for them or in the case of cancellation of the project.

    It's a standard contract, IMO.


    Andrea


  • which in Chile, for example, would be social security, health plan, and and idemnity sum proportional to the years you worked for them. Feelancers must take care of all of these for ourselves.

    [Edited at 2007-04-07 22:48]

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  • Fan Gao
    Australia
    Local time: 11:35
    Member (2006)
    English to Chinese
    + ...
    ...other than.... Apr 7, 2007

    Brandis wrote:
    "The present contract is not a contract of employment and in the event of cancellation for any reason whatever, no compensation or any sum other than the payment made to him/her for services rendered under the terms of the present contract shall be paid to the Translator."

    These are the key words which I think you have misunderstood. I've seen this before and it's nothing to be concerned with at all.

    Although I must admit, if you do work with a company on a long-term basis, it would be nice to have maybe a Christmas bonus or a share in the profits you're helping them make:)

    Best wishes,
    Mark


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    xxxBrandis
    Local time: 03:35
    English to German
    + ...
    TOPIC STARTER
    My thoughts were Apr 8, 2007

    Hi! based on one situation I had faced with a british agency few years back. Everything went fine and the project was also completed till about 80%, but the outsourcer had cancelled it, informing that it is not in his hands to control it anymore, his client had decided not to continue, hence he will not be able to pay. I finally got only 50% of my work paid. The issue is about the cancellation due to unforeseen reasons over which neither the outsourcer nor the translator has any control. Or may be I am missing something in the wording used as under the quotes. Brandis

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    Alicia Casal  Identity Verified
    Argentina
    Local time: 22:35
    Member (2005)
    English to Spanish
    + ...
    Nothing Strange Apr 8, 2007

    Just that they are not granting you the compensations for in-house employees.

    Seems OK.


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    Özden Arıkan  Identity Verified
    Germany
    Local time: 03:35
    Member
    English to Turkish
    I've undersigned it many times Apr 8, 2007

    It's a standard clause which translates into plain language exactly as Alicia has worded:

    Just that they are not granting you the compensations for in-house employees.


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    Heinrich Pesch  Identity Verified
    Finland
    Local time: 04:35
    Member (2003)
    Finnish to German
    + ...
    Ok, if only so short Apr 8, 2007

    Some English agencies sometimes send us contracts with many pages and we just should sign them and fax them back.
    I generally refuse to sign contracts more than one page long. First of all I do not want to read them and I cannot sign anything I haven't read carefully and understood.

    So if these agencies do not want to do business the normal way (accepting an offer by simple email exchange) they can forget about it.

    Cheers
    Heinrich


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    Narasimhan Raghavan  Identity Verified
    Local time: 07:05
    English to Tamil
    + ...
    In that case how do you explain this? Apr 8, 2007

    OK, I am not an employee of the outsourcer in the legal sense of the term. But then, why should he go ahead and restrain me legally from taking up any work from his clients for a fixed period of time, even after the contract has ceased?

    A Delhi agency wanted me to agree to this clause and I refused stating that my relationship with him will be non-existent once the contract is over and he has no business dictating to me whom I should accept as client in future.

    What happened then? He continued giving me work of course till such time I refused his work offer as his rates were no longer good enough for me.

    It all boils down to this. Whover is strong, wins.

    Regards,
    N.Raghavan


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    Fan Gao
    Australia
    Local time: 11:35
    Member (2006)
    English to Chinese
    + ...
    Different thing entirely Apr 8, 2007

    Brandis wrote:
    Everything went fine and the project was also completed till about 80%, but the outsourcer had cancelled it, informing that it is not in his hands to control it anymore, his client had decided not to continue, hence he will not be able to pay.

    Hi,
    That's an entirely different thing. At the end of the day you had an agreement with your client to do a job. They then cancelled the job and should have paid you for the work you had done, end of story. The end-client cancelling the job and not paying your client has absolutely nothing to do with you.
    If you are worried about that happening again maybe you could add your own clause to stress this very point so that everyone is clear up front that the agreement is between you and them and any actions by a third party (their client) will have no effect on you whatsoever.
    Best wishes,
    Mark


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    xxxBrandis
    Local time: 03:35
    English to German
    + ...
    TOPIC STARTER
    When so many say it is a regular practise.. Apr 8, 2007

    Hi!
    I have informed the potential outsourcer / agency of my thoughts and have not recd. any feed back. But may be I am too worried due to a few bad incidents in the past. I shall sign the 9 page contract and send back. But I guess it would be illegal to introduce such clauses as mentioned " cancellation of a running contract due to force majeure" and not compensating. Thank you all for the moral support. Brandis


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    Cecilia Civetta  Identity Verified
    Italy
    Local time: 03:35
    Member (2003)
    Italian to Spanish
    + ...
    Brandis... Apr 8, 2007

    They are not saying that they won’t pay you in case of cancellation of the job. They are only saying that there will be no compensation other than that of the work you deliver! Please, read it carefully.


    Brandis wrote:

    Hi!
    I have informed the potential outsourcer / agency of my thoughts and have not recd. any feed back. But may be I am too worried due to a few bad incidents in the past. I shall sign the 9 page contract and send back. But I guess it would be illegal to introduce such clauses as mentioned " cancellation of a running contract due to force majeure" and not compensating. Thank you all for the moral support. Brandis


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    Lawyer-Linguist  Identity Verified
    Portugal
    Local time: 02:35
    Dutch to English
    + ...
    No wonder ... Apr 8, 2007

    Brandis wrote:

    My answer was -
    Would you then be able to organize 100% down payment and forget it, in case of the above terms. I am self employed and work in a group and we have a company form. Even as I do your translation, this condition afore mentioned is beyond any comprehension of any known trade ethics and known conventions.



    With all due respect Brandis, I'm not surprised you haven't had (or if you don't get) a positive answer.

    Perhaps it would be a better idea to ask these types of questions on the forums first in future, i.e. before jumping the gun and telling a potental client that their terms of business don't fall under the scope of ethical trade!

    I wIsh you all the best but if I received a signed contract from you after that first message, I'd rip it up to be honest.

    There's a way to query another party's terms without adopting the tone you did. Never mind the rather serious EN errors in your message - but perhaps you actually wrote to the client in another language?

    [Edited at 2007-04-08 17:00]


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    xxxAdrian MM.
    Local time: 03:35
    French to English
    + ...
    Governing law and purported exclusion of a goodwill payment Apr 8, 2007

    Intriguing points everyone is making. I see no problem asking for 100% of the estimated bill upfront - v. clever, if the would-be client is compliant. It may not be a convention in the trans. prof. - but is in the legal prof. in many countries, with no return of money from London West End Solicitors if the actual bill falls short of the estimate.

    There is/are a couple of points that are eluding me:

    1. by what law are the conditions governed? Brandis seems to be in Germany, but there is no reason why a law other than German should apply.

    2. if German or Austrian law does apply, then let's have a brief opinion as to the case for Brandis 'brandishing' a claim - as a deemed *non-employee* agent or even partner - for a non-contractual goodwill (Kundschaftsentschädigung) or severance payment (Auseinandersetzungsguthaben) in the event of the client cancelling the job that is completed elsewhere but then, taken together with other jobs that Brandis does, helps to build up over the years the business goodwill of the agency - free-of-charge by the sound of it.

    Mark from Chinese Concept does hint at related 'ex gratia' benefits like a Christmas bonus and a share of profits for a non-shareholder linguist.

    It is a good idea not only to post the query first on this forum, but - if the value of the job or contract warrants it - to 'go and see a Contract Solicitor' or Rechtsanwalt/ anwältin.

    [Edited at 2007-04-08 17:09]

    [Edited at 2007-04-08 18:45]

    [Edited at 2007-04-08 19:54]


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