Agency contract and liability clause...
Thread poster: xxxtr.
xxxtr.
Local time: 17:56
English to Italian
Aug 2, 2004

I've already searched the forums and found a few past discussions on this issue, which I'd never come across before... so I expect everyone will tell me not to sign, but is there any way around this? Or would agencies using such clauses refuse to negotiate on the terms anyway?

Here's the clause:

"You will provide your services with reasonable care and skill to the best of your ability. We will be relying on your skill, expertise, and experience in the provisions of the services and you agree to indemnify us against all loss, damage, costs, legal costs and other legal expenses whatsoever incurred or suffered by us as a result of such reliance. You agree to maintain at your own cost a policy of insurance to cover your liability for any act or default for which you may become liable to indemnify us under the terms of this arrangement".

Now, aside from the ethical-legal debate (I'll spare you my ranting for now ), on a practical level, I am wondering, what to do? Does anyone have experience of negotiating on contracts with clauses like these?

Any advice is welcome, thanks in advance!


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Catherine Bolton  Identity Verified
Local time: 17:56
Member (2002)
Italian to English
+ ...
And the agency's role is....? Aug 2, 2004

Your own instinct has told you to steer clear of these folks.
The agency clearly doesn't bother to reread anything and acts strictly as a middleman. Otherwise, the AGENCY would take responsibility for the final proofing of the job. My hackles would definitely be up on this one.
Unless these folks are willing to pay you a LOT of money so that you, in turn, can pay someone else to proof, I wouldn't touch a contract like that if I were you.
Catherine


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Trudy Peters  Identity Verified
United States
Local time: 11:56
German to English
+ ...
In addition to what cbolton said, Aug 2, 2004

you could cross out the offending part of the contract and see if they would sign it. Probably not, but it's worth a try.

Have you checked the agency out on the Blue Board or other payment practices lists?

Trudy


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Anne Gillard-Groddeck  Identity Verified
Local time: 17:56
German to English
Contract Aug 2, 2004

[quote]cbolton wrote:

Assuming that English law applies to your contract, which is likely to be the case you are required by statute to exercise reasonable skill and care in providing the service (section 13 of the Supply of Goods and Services Act 1982). This is a term implied into the contract by statute, regardless of what you and the agency agree. You owe the duty towards the agency as you have no contract with the customer.

The standard required would be the standard of a competent translator. What exactly this entails is rather unclear under present circumstances.

Although you have no contract with the ultimate customer, you may still be liable in tort if it is proved that you had a duty of care, breached it due to negligence and caused direct loss to the client which would not have happened otherwise.

The agency, acting as employer, would not be generally liable for the faults of an independent contractor (vicariously liable). However if the agency were to be proved negligent in their selection of translators (by not checking qualifications, possibly testing etc.), the agency may well be liable, particularly if the selection has been made on grounds of price alone. I do not think that mere "reliance" would be sufficient here. If the agency were selecting a medical practitioner (for example) rather than a translator such reliance would be justified on grounds of general professional standards that are to be expected, but the field of translation is, as mentioned, generally unclear.

The reason why an employer is not generally considered liable for the torts of independent contractors is because the employer does not have a sufficient degree of control. However the employer in such a case may well be in breach of the contract with the ultimate customer if the employer has held itself out as having the skills needed to select competent translators.

(In the case of employees the employer, rather illogically, is considered to have control over the acts of the employee, so is always vicariously liable). However if the employer is more than a middleman and also assumes tasks such as proofreading, then it could be argued that the employer does have a sufficient degree of control.

Employers can generally recover from negligent employees, but these claims are not usually pursued unless there is evidence of collusion or wilful misconduct, so that the employer's insurance would be liable.

It is not unreasonable for an employer to request a professional indemnity insurance from an independent contractor, but this must be reflected in other factors, such as the price paid for the translation. If the independent contractor, acting as a freelancer and not a large company, were to be saddled with the entire costs without adequate remuneration being paid, this might well be considered unfair.

Hope that this helps.

Anne


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xxxtr.
Local time: 17:56
English to Italian
TOPIC STARTER
thanks! Aug 2, 2004

- Catherine: indeed, my instinct was to be rather put off by the whole thing...

cbolton wrote:
The agency clearly doesn't bother to reread anything and acts strictly as a middleman. Otherwise, the AGENCY would take responsibility for the final proofing of the job.


Exactly what I thought. And what I told them. I emailed them and explained my objection. I'll see what they reply. But I'm not getting a good vibe from an agency that has to put that kind of clause in a contract.

You know, it hadn't even occurred to me that they'd do no revision of the translation at all. Which agency doesn't? And without even mentioning it?

I guess I'm naive... It's just, I've never even been asked to sign something like this before.

- Anne: thank you for the very detailed legal backgrounder!

It does help in understanding a bit more about the context, with which I was totally unfamiliar (yes it is English law, you guessed correctly).

You, like Catherine, nailed the issue. First the wording is so vague and "as a result of that reliance" could be interpreted to pass on to me liability including those that should be the agency's. The real point is indeed as you say here:

...if the employer is more than a middleman and also assumes tasks such as proofreading, then it could be argued that the employer does have a sufficient degree of control


I would think - as a total layman in legal matters, but just from common sense - that aside from proofreading and editing (which again I do assume is the job of an agency), the very fact they are the ones to deliver the translation means they are the ones responsible for it. Even if they were only 'middlemen', they wouldn't be neutral, they'd have to take on all responsibilities once the job is out of my hands and into theirs. Otherwise, what's their use, indeed?

All other agencies I've dealt with take it for granted that they get the final word on the translation. If there's any problem they can bring it up with me at the stage of translation and revision, but they can't place the burden on me for any potential litigation once they've already delivered it all to the client.

I can't even think what possible legal problems might arise, but even if it's unlikely, I'm not willing to take the bet, and it's the principle that really bothers me in the first place.

It is not unreasonable for an employer to request a professional indemnity insurance from an independent contractor, but this must be reflected in other factors, such as the price paid for the translation. If the independent contractor, acting as a freelancer and not a large company, were to be saddled with the entire costs without adequate remuneration being paid, this might well be considered unfair.


Seems like that to me too.

What I don't understand is, can't they just, on their own end, make it clear to their clients that they won't be held liable? I've seen such disclaimers in the Terms and Conditions of translation agencies, or even other translators.

After all, even software developers void any liability in the license, even for damages resulting *directly* from the use of the software.


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xxxtr.
Local time: 17:56
English to Italian
TOPIC STARTER
yes, I checked Aug 2, 2004

Trudy Peters wrote:
Have you checked the agency out on the Blue Board or other payment practices lists?


Trudy, yes, I did check, and there's two comments on the Blue Board, both with a 5-star rating.

Not much else I could find on the internet. Just references in listings and such.

They did sound reliable and professional enough to me, in the way they approached me, and they didn't ask for lower rates, so if it wasn't for that clause, I wouldn't have any objections.

I'd come across that suggestion in previous threads, about returning the contract with the clause crossed out, but I've been told that they'd have to expressly agree to that amendment to make it valid, so it's the same as asking to amend the contract, I guess.

Thanks again everyone for the comments. I'll let you all know what they say when I get a reply.


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Catherine Bolton  Identity Verified
Local time: 17:56
Member (2002)
Italian to English
+ ...
An idea RE the BB Aug 3, 2004

I checked the BB just last week about a new customer and ended up contacting the people who had rated the customer. I got a very kind and exhaustive reply from one of the raters.
Why don't you try contacting the people who rated the agency, explain the dilemma and ask if they signed the same kind of contract?
Again, though, instinct is a wonderful thing and I have generally rued the times I chose to ignore it!
Catherine


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xxxLia Fail  Identity Verified
Spain
Local time: 17:56
Spanish to English
+ ...
liability clause - similar (identical?) Aug 3, 2004

You accept all liability for claims of negligence and/or breach of contract arising from any
errors in the translation that you have performed and will indemnify XXXXXXXXXX in respect
of any and all liability and loss that XXXXXXXXXXXX may occur because of this. The freelancer is
not responsible for alterations made by a third party, such as the copy editor or proof reader,
after they have submitted the deliverable. The freelancers´ liability to XXXXXXXXXXXXX shall not
be excluded, limited to any contract term, or otherwise. You may choose to arrange
professional liability insurance.

I posted on this subject recently, with the above clause from a contract to be signed with an agency.

What is clear is that I would NOT sign UNLESS I had professional indemnity insurance.

It seems clear that the client could sue the agency, but also that the agency would be in their rights to sue the person they sub-contrcated the work to.


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xxxtr.
Local time: 17:56
English to Italian
TOPIC STARTER
got a reply from the agency Aug 6, 2004

Catherine,

I'd thought about contacting the people who rated the agency on the BB, but I'd already written to the agency so was waiting for their reply... Guess what? They say they cannot remove that clause. That "many agencies" include it. Yeah, right. Whatever.

I almost want to ask them if they have any proofreaders and editors at all. Because if they do, then that clause makes even less sense. And if they don't, then that does not make them a "translation agency" in the proper sense, does it?

Oh well, if they can't understand that themselves...

Because I did some searching, I might as well add this here for future reference - here's a nice checklist of all the unfair terms in translator-agency contracts:

http://www.linguabase.com/tips.asp#CONTRACTS
"Oh my... why should I sign away my rights and accept full liability? What exactly is the role of the agency here? Do they not have a system of quality assurance in place?" ...

Here's an instance of a detailed "terms and conditions" on a translation agency site, where they at least make it clear that the liability (to clients) has to be for direct damages and " shall in no case exceed the contract price for the Work":
http://www.transaction.co.uk/corpsite/services/termsandconditions.asp

Here's an instance of a contract for translators (in relations with *direct* clients) specifying a limited liability:
http://66.102.11.104/search?q=cache:TMF84yN1TDgJ:www.crystaltranslationservice.com/agreement.pdf
8. Liability of the translator
The liability of the Translator is limited to the total value of the contract. Furthermore, the Translator shall not be liable for alterations made to his/her work by other persons.


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xxxtr.
Local time: 17:56
English to Italian
TOPIC STARTER
identical clause... Aug 6, 2004

Thanks Ailish, I think I'd come across your post while searching past discussions on this - yes it does sound identical...

Ailish Maher wrote:
What is clear is that I would NOT sign UNLESS I had professional indemnity insurance.

It seems clear that the client could sue the agency, but also that the agency would be in their rights to sue the person they sub-contrcated the work to.


But isn't this one of those cases of unfair terms of contract?

Anybody can sue anybody these days. But I would think that the fact a client may sue the agency does not change the terms of the translator-agency relationship.

Like Anne explained, there is a degree of control a *translation* agency has on the translation.

And I would think the liability has to be limited to the actual value of the work. At least, unless it's very sensitive material, but even there, I can think only of very extreme cases where translations would do more damages than neurosurgery gone wrong. Mistranslating a classified document for the CIA and starting a war? that'd make a good action movie.


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Christina-Maria Carbogno
United States
Local time: 08:56
English to German
+ ...
Another clause ...sign or not sign? Aug 26, 2010

Dear colleagues,
Thank you very much for your interesting comments in the discussion above! I have just received a contract containing the following clause and I'm not sure if I should sign it. I will take out liability insurance next month anyway so I will not sign it before I get the insurance. Do you think I can sign it once I have liability insurance? I'm looking forward to your opinion:
11. INDEMNITY: Supplier shall, at its own expense and at Client’s option, defend Client and Client’s affiliates, and the officers and directors, agents, and employees of Client and its affiliates, against any claim, demand, or legal action (a) arising out of bodily injury or death of any principal, employee or Supplier of Supplier, or (b) arising out of or in connection with negligent acts or omissions of Supplier or any of Supplier’s principals, employees or Suppliers, or (c) arising out of or in connection with the performance or breach of this Contract, or (d) alleging that the services performed by Supplier or the products or deliverables supplied by Supplier under this Contract infringe the patent, copyright, or other proprietary rights of, or misappropriate the trade secrets of, any person or entity, or (e) arising out of a claim that Client is the statutory employer of any of Supplier’s principals, employees or Suppliers for purposes of taxation or workers’ compensation. Supplier shall indemnify and hold harmless Client and Client’s affiliates, and the officers and directors, agents, and employees of Client and its affiliates, for any expenses, liabilities, costs, settlements or judgments, including attorney’s fees at trial and at appeal, in connection with any claim, demand, or legal action described above.

Best wishes,
Christina

[Edited at 2010-08-26 20:06 GMT]


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Oliver Walter  Identity Verified
United Kingdom
Local time: 16:56
Member (2005)
German to English
+ ...
I have turned down similar terms Aug 26, 2010

I have been offered work (following a successful short free test) by an agency XXX and, in effect, refused it because I did not accept some of the proposed terms.
Examples, in which I have modified the wording slightly but retained the meaning ("LSP" = Language Service Provider", i.e. translator):

1. Both the Translation Memory and the Glossary generated in the course of the translation work covered by this contract remain the exclusive property of XXX.

to which I replied "Not acceptable - the LSP must be permitted to use the Translation Memory and Glossary for his/her own future work."

2. Any payments made by XXX do not constitute acceptance of the work; the LSP is required to repay such sums if the work is not finally accepted by the End Customer.

to which I replied "Not acceptable: the LSP's contract is with XXX, not with the end customer." Also, there is no mention of a time within which the "end customer" can decide that the work is not accepted.

3. If a translation is not accepted by the end customer, the LSP must make any necessary corrections, at no additional cost to XXX, that are required to guarantee that the final work supplied is of an acceptable quality.

to which I replied "Not acceptable because this makes the LSP responsible for ensuring compliance with the terms of a contract between XXX and the end customer." (Further thoughts on this one: A condition similar to this could be acceptable, but at the time I was looking for opportunities to declare terms "not acceptable"; it occurs to me that "at no additional cost" could mean that XXX's expenses in getting the LSP to make corrections could be deducted from the payment.)

The "replies" I mentioned above were put in an edited version of the agency's proposed terms that I sent back to them. I also cheekily proposed to add to the English version of the terms, "(Note that this English translation of the original Italian document 'Condizioni ... Traduzione' is not to be taken as an example of the quality expected.)". The text I have quoted above is not an example of the poor quality, as I have improved it and there are worse examples elsewhere in the document.

This was in June, about 10 weeks ago and I have not heard from the agency since then.
P.S. I've just noticed, this thread was started several years ago! The issue is, however, still a valid one.

Oliver

[Edited at 2010-08-26 20:54 GMT]


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Neil Coffey  Identity Verified
United Kingdom
Local time: 16:56
French to English
+ ...
Negociate and only sign what you're happy with Aug 27, 2010

xxxtr. wrote:
Now, aside from the ethical-legal debate (I'll spare you my ranting for now ), on a practical level, I am wondering, what to do? Does anyone have experience of negotiating on contracts with clauses like these?


A contract can always be negociated. That's the whole point of a contract -- that it consists of terms *agreed* between the parties concerned.

In this case, as I think another poster has commented, I think you need to get the agency to unpick the legalese and clarify under what precise circumstances they would expect you to "indemnify" them and in what way. I personally wouldn't sign any contract with an agency (or indeed an end client) where my legal liability would be high enough to require me to take out insurance. In my view, part of the whole raison d'être of the agency is that *they* have the insurance and shield you from lttigious clients.

[Edited at 2010-08-27 01:47 GMT]


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