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clause in an agreement, please read and comment
Thread poster: Monika M

Monika M
Poland
Local time: 20:44
English to Polish
+ ...
Aug 4, 2010

Hi, would you sign an agreement with such a clause:

"The Contractor agrees at all times to fully indemnify and hold harmless, the Company, its officers, directors,
agents, employees, successors, assigns and representatives of and from any and all liability for claims, damages,
losses, costs, expenses and payments, including but not limited to (a) interest, penalties and legal fees, should the
Company be assessed by the Internal Revenue Service, or any other authority or agency and required to pay
statutory remittances, payments, penalties, interest and legal fees as a result of receipt by the Contractor of the
fees provided by this Agreement; and (b) any act, error, or omission of Company, its employees, or
representatives in the course of their performance under this Agreement; and (c) any claim whatsoever brought
by any person involved in connection with Contractor's services under this Agreement.."

What do you think?

MM


 

Teresa Borges
Portugal
Local time: 19:44
Member (2007)
English to Portuguese
+ ...
I would ask a lawyer Aug 4, 2010

about this!

 

liviu roth
United States
Local time: 14:44
Romanian to English
+ ...
I would't make a big deal out of it. Aug 4, 2010

It seems the agency is in the US, while you reside in Poland. I wonder how can they enforce some of the provisions. IRS may have a long arm, .... but in Poland ?
It is, as usual, a provision to cover their butt.
Personally, I wouldn't worry.
Lee


 

Mr Florida
Local time: 14:44
German to English
+ ...
Strange Aug 4, 2010

This is where working under a limited liability umbrella would give you peace of mind.

 

Ahmed Maher  Identity Verified
Local time: 20:44
English to Arabic
+ ...
lawyer Aug 4, 2010

Hi,

Let your lawyer check it.

Ahmed Maher


 

Peter Linton  Identity Verified
Local time: 19:44
Member (2002)
Swedish to English
+ ...
Say no Aug 4, 2010

I have been asked to sign such contracts with some American agencies. I always say it is unacceptable. You are accepting unlimited liability to repay the agency. They will tell you it is just a formality, and you will be covered by your own professional insurance.

But I have heard it said that if you accept a contract like that, you automatically invalidate your insurance. You are accepting liability before your insurance company has a chance to challenge that.

It is like car insurance -- you are advised never to say it was your fault, but to let the insurance companies fight it out.

If you accept, you are accepting potentially very great financial risk at a very small chance of being pursued in Poland. Even so, I would tell them either the clause is out or you are out.



[Edited at 2010-08-04 14:29 GMT]


 

Oleg Osipov  Identity Verified
Russian Federation
Local time: 21:44
English to Russian
+ ...
Same opinion Aug 4, 2010

Peter Linton wrote:

I would tell them either the clause is out or you are out.



[Edited at 2010-08-04 14:29 GMT]


Looks like a clause in a multi-million contract.


 

Charlie Bavington  Identity Verified
Local time: 19:44
French to English
Crikey! Aug 4, 2010

Monika M wrote:

What do you think?


Quite often on this kind of thread, I think the translator is making a fuss about nothing, and I would usually sign the clause that is highlighted.
This is not the case here. I would probably not sign that. I can see why my insurance doesn't cover North America!


 

LegalTransform  Identity Verified
United States
Local time: 14:44
Member (2002)
Spanish to English
+ ...
Strange... Aug 4, 2010

Does this mean you would have to compensate them if they make a mistake and are sued?



"The Contractor agrees at all times to fully indemnify...the Company...from... (b) any act, error, or omission of Company, its employees, or
representatives in the course of their performance under this Agreement



 

David Wright  Identity Verified
Austria
Local time: 20:44
German to English
+ ...
Bark probably worse than its bite Aug 4, 2010

As already mentioned, this clause could only really be enforced in the USA. I also doubt whether these standard terms of business would be upheld in court, since they do not seem to give the contractor any option but to sign, which constitutes an exploitation of a dominant position and may well be rejected by the court. I'd possibly sign it if I really wanted the customer; Why don't you try crossing out the bits you don't like and signing it and see what happens.

 

David Wright  Identity Verified
Austria
Local time: 20:44
German to English
+ ...
Jeff - no Aug 4, 2010

STBs are usually interpreted very literally by the courts so the term "in the ... performance of this agreement" can only relate to the relationship with the contractor, and I'm not sure how a claim for compensation could arise there.

 

Soonthon LUPKITARO(Ph.D.)  Identity Verified
Thailand
Local time: 01:44
Member (2004)
English to Thai
+ ...
But a principle of equality in agreement Aug 4, 2010

The clause can be very tight toward the contractor, not the company. In general, the agreement is arranged with equality between the counterparts. If 'contractor' and 'company' are reversed in any place, I would be happy to sign. The reason is that I want a fair protection in the agreement based on my honest intention for the proposed transaction. Advantage and disadvantage in this agreement will be entirely offset e.g. in financial terms.

Regards,
Soonthon L.


 

John Fossey  Identity Verified
Canada
Local time: 14:44
Member (2008)
French to English
Replace it with my own clause Aug 4, 2010

What I tell people in such cases is that I have to substitute my liability clause, which reads:

"Since I have no control over or knowledge of the source, use, destination or possible subsequent modification of the translation service provided, you agree that my total liability, in every case and for every reason, is limited to the amount paid for the work. You agree that you will protect, defend and indemnify me and hold me harmless from any and all claims, costs, charges, judgments or other consequences arising as a result of the translation, regardless of cause, tort, fault, error or omission, whether justified or not."

In every case that I can recall, the outsourcer's clause was written by their lawyers and is open to negotiation - they need the work done and don't usually let a clause like that stand in the way. I don't think I've ever lost a job because of insisting on using my clause.


 

Brian Young  Identity Verified
United States
Local time: 11:44
Danish to English
I agree with John Fossey Aug 4, 2010

You have just as much right to demand that they accept your terms. I would not sign the agreement. Just tell them that you want to re-write it, and send them a version that you can accept. That kind of legal mumbo-jumbo sounds like a trap, and in my experience these outsourcers are rarely worth working for.

 

Andreas Baranowski  Identity Verified
Japan
Local time: 03:44
Japanese to English
+ ...
Sue me if you can Aug 5, 2010

Sounds like a boilerplate agreement to me. Even if it came to litigation and even if the litigant were able to obtain a court ruling ordering you to pay damages, what are the chances of enforcement in Poland? Ask yourself how much this client means to you. If it’s a good client, I would sign.

 
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