Contract issues - am I justified in being concerned?
Thread poster: Kaiya J. Diannen

Kaiya J. Diannen  Identity Verified
Australia
Member (2008)
German to English
Apr 7, 2008

Hello everyone,

I've recently been requested to sign a "Service Level Agreement" from a translation agency operating out of Ireland (the contract is subject to the laws of Ireland, which I am not familiar with).

I have no problems with normal confidentiality agreements, but this agreement is 5 pages long (not including the "Exhibits") and there are several clauses that give me pause.

One of these concerns "modifications" to the services that are expected of me:

"[Agency] may at any time modify or add to the scope of the Services agreed to between the parties upon written notice to the Partner specifying the desired modifications or additions to the same degree of specificity as in the original specifications. Partner agrees that modifications or additions which are not considered by both parties to be substantial (material) will be performed by Partner at no additional cost. "

To me, this seems as if I will end up in a dispute if only one of the parties (myself) feels these modifications are substantial. Is this just paranoia?

Another clause, concerning "ownership" is quite long and seems overly inclusive. I feel very hesitant about signing this, it seems like I'd be giving away any and all rights I ever had. I'm not sure how to paraphrase it but I'd really appreciate some feedback, so please pardon the length:

"a. Any content, information or materials produced by Partner in connection with Services, including without limitation, any translations, translation memories and language resources, and any contents, glossaries, style guides and dictionaries related thereto, and any results or proceeds of the Services, in any state of completion ("Work Product") shall be the sole property of [Agency] or its designee. Partner hereby unconditionally and irrevocably assigns to [Agency] or its designee whatever right, title and interest Partner may have or claim to such Work Product and all rights therein, including, but not limited to, any patent, copyright, right to create derivative works, trademarks, trade secret, mask works, or other intellectual property and proprietary rights, and hereby authorizes [Agency] and/or any person or entity obtaining rights directly or indirectly from [Agency] (to the extent of such rights) to make any desired changes to the Work Product or any part thereof, to combine or use the Work Product with any other goods, products, materials, services or software in any manner desired. Partner agrees to execute at [Agency’s] request any and all documents [Agency] may deem necessary, appropriate or convenient in connection with the foregoing.

b. Without limiting the foregoing, Partner agrees and confirms that with respect to any claims of moral rights or other intellectual property or proprietary rights in any part of the Work Product, (i) it has no objection to publication and use of the Work Product in the manner described in this Agreement or otherwise; (ii) Partner’s identity as an author in connection with any distribution or use may be withheld; (iii) [Agency] or its successors or assigns (including all persons obtaining rights directly or indirectly through such parties), may make future modifications and adaptations to the Work Product, and may disclose, transfer or dispose of the Work Product and any modifications or adaptations thereof or rights therein without notice, consent or further remuneration, in any manner whatsoever; and (iv) Partner’s remuneration for the Work Product is adequate and reasonable. To the extent that Partner’s has any rights (and any of its employees’ and subcontractors’ rights, if any) in the Work Product, including any moral or other rights, which are not capable of assignment under applicable law, Partner (on behalf of itself and its employees and subcontractors) hereby: (x) agrees to and does hereby grant to [Agency] and its designee an exclusive, irrevocable, perpetual, transferable, royalty-free, fully paid up, worldwide right and license to exercise any and all such rights, and to sublicense any or all of the foregoing rights (including the right to grant further sublicenses); and (y) irrevocably and unconditionally waives all enforcement of and agrees not to assert those rights. The provisions of this Section 3 shall be enforceable to the maximum extent permitted under applicable law."

Is such a surrender/transfer of translation rights normal??

And of course, the age-old question of what should be surrendered to the agency (this under one of the "Exhibit" topics):

"Deliverables: cleaned files, uncleaned (bilingual) files, up-to-date translation memory (or export), log files, hardcopy (as requested), handoff checklists and/or any reports created by the verification tool(s) mentioned above"

How many of you agree to give away your uncleaned files as well as TMs? I'm not saying I've never done it, but only with certain clients under certain conditions. Is this becoming standard practice?

Any and all feedback welcome - thank you!


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Charlie Bavington  Identity Verified
Local time: 09:03
French to English
Deliverables Apr 8, 2008

Janet Rubin wrote:

How many of you agree to give away your uncleaned files as well as TMs?


If the client has the source and the translation, then they can, if they feel so inclined, create a) a TM and b) an unclean file.

It is therefore my opinion that NOT to provide these files, when I have them readily available, is just churlish and not massively customer-friendly. So, if they ask, they can have 'em


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RobinB  Identity Verified
Germany
Local time: 10:03
German to English
Reservations Apr 8, 2008

Janet Rubin wrote: "[Agency] may at any time modify or add to the scope of the Services agreed to between the parties upon written notice to the Partner specifying the desired modifications or additions to the same degree of specificity as in the original specifications. Partner agrees that modifications or additions which are not considered by both parties to be substantial (material) will be performed by Partner at no additional cost. "

To me, this seems as if I will end up in a dispute if only one of the parties (myself) feels these modifications are substantial. Is this just paranoia?


No, I read it that both parties must consider the modifications/additions to be not material. So if you don't agree, you don't have to do it.

"a. Any content, information or materials produced by Partner in connection with Services, including without limitation, any translations, translation memories and language resources, and any contents, glossaries, style guides and dictionaries related thereto,


No way. The agency has no right to any "glossaries, style guides and dictionaries" you create in the course of your work unless these are agreed and remunerated separately. Actually, the same applies to any translation memories and other language resources. Of course they can require you to delete TMs after a project is completed, but that's another matter entirely.

My advice to you is to get this entire paragraph rewritten so that it refers solely to the work for which you are remunerated, i.e. the translations.

How many of you agree to give away your uncleaned files as well as TMs? I'm not saying I've never done it, but only with certain clients under certain conditions. Is this becoming standard practice?


Delivering uncleaned files isn't a problem at all if that's what they want. But not the TMs.

Robin


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Vito Smolej
Germany
Local time: 10:03
Member (2004)
English to Slovenian
+ ...
Deliverables... Apr 8, 2008

...cleaned files, uncleaned (bilingual) files, up-to-date translation memory (or export), log files, hardcopy (as requested),...


TM in this context can only mean the equivalent of the bilingual files (i.e. TM built from scratch using these files) and I never had any problem with it. All the rest of my TM assets - it's none but my own business.


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Kaiya J. Diannen  Identity Verified
Australia
Member (2008)
German to English
TOPIC STARTER
and rights? Apr 8, 2008

No way. The agency has no right to any "glossaries, style guides and dictionaries" you create in the course of your work unless these are agreed and remunerated separately.... My advice to you is to get this entire paragraph rewritten ...

Delivering uncleaned files isn't a problem at all if that's what they want. But not the TMs.

Robin


I really appreciate your viewpoint on this. Did anything in the second paragraph about intellectual property rights strike you as odd, or did that seem standard issue to you?

Thanks again!!


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Madeleine MacRae Klintebo  Identity Verified
United Kingdom
Local time: 09:03
Swedish to English
+ ...
I read this one slightly differently Apr 8, 2008

And would not sign a contract containing the following:
RobinB wrote:

Janet Rubin wrote: "[Agency] may at any time modify or add to the scope of the Services agreed to between the parties upon written notice to the Partner specifying the desired modifications or additions to the same degree of specificity as in the original specifications. Partner agrees that modifications or additions which are not considered by both parties to be substantial (material) will be performed by Partner at no additional cost. "

To me, this seems as if I will end up in a dispute if only one of the parties (myself) feels these modifications are substantial. Is this just paranoia?


No, I read it that both parties must consider the modifications/additions to be not material. So if you don't agree, you don't have to do it.

Robin


My problem is with this bit "modifications or additions which are NOT considered BY BOTH PARTIES to be substantial". Let's imaging a situation where the translator, "Partner", finds these "modifications or additions" to be substantial, but the agency doesn't.

According to this clause, the translator would still have to perform the task at "at no additional cost".

The final sentence of this para would have to be rewritten before I would sign.



[Edited at 2008-04-08 19:27]


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RobinB  Identity Verified
Germany
Local time: 10:03
German to English
IPRs Apr 8, 2008

Janet Rubin wrote: I really appreciate your viewpoint on this. Did anything in the second paragraph about intellectual property rights strike you as odd, or did that seem standard issue to you?


It seems pretty over-the-top and exhaustive to me. Personally, I wouldn't sign it, because I only waive my moral rights (Autorenrechte) on a case-by-case basis, never on a blanket basis.

It seems to me that the agency claims a lot of rights, and the translator has a lot of obligations, so it's a rather one-sided contract.

Robin


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RobinB  Identity Verified
Germany
Local time: 10:03
German to English
Overall impression Apr 9, 2008

Janet,

A final opinion to wrap up your question.

Based on the passages you cite, I would rate this SLA as unnecessarily complex, dangerously opaque and ambiguous, and far too one-sided to be a reasonable basis for a fair business relationship.

I think that an agency that requires freelance translators to sign up to this sort of agreement is essentially looking for servants, rather than service providers.

My tuppence worth.

Robin


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Kaiya J. Diannen  Identity Verified
Australia
Member (2008)
German to English
TOPIC STARTER
My impression too... Apr 9, 2008

Thanks for your thoughts, as I mentioned before, I really appreciate this.

What you've expressed so far (Robin) coincides almost exactly with my own impression, but this agency is allegedly "huge" and growing every day, so there must be a lot of translators out there (somewhere) that are willing to sign it.

From what they tell me, this company sometimes works on large, multi-linguist/coordinated projects with a proprietary process (trying not to name names, here), so I can understand their caution in wanting to protect their investments.

But when I saw this document, alarm bells started ringing.

Even if I am lucky and the contract doesn't end up affecting me directly, as a matter of principle, it just doesn't seem right to "sign everything away".

This is a dilemma for me, because I also don't want to cut myself off from a potentially lucrative - and who knows - perhaps successful and satisfying new business relationship.

But from everything I can tell so far, I think this is their boilerplate contract, and somehow I doubt that they will be willing to alter it for one sole linguist.

Which means that if I mention alterations I'd prefer to see, I'll probably lose them as a potential business contact.

My business is going ok, but it runs a kind of feast or famine course. I can certainly live without this client, but I do like to find the occasional new client in the interest of evening out business flow and increasing my options, and in other concerns, this company is certainly very professional.

Does anyone think this might be the wave of the future? If I turn this down, will I be turning down more in future for the same reasons, fating myself to work only for small and medium-sized agencies with limited work flow?

It's definitely an issue to consider. Sigh.


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