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Would you sign the contract?
Thread poster: xxxwonita
xxxwonita
China
Local time: 23:20
Aug 21, 2008

I must sign a contract with an agency before getting jobs. Part of the contract goes:

....

“Technical” penalties will be applied in the event the translation does not comply with the technical requirements.

- penalty of 5% of the translation price will apply in the event of minor non-compliance with technical requirements, including but not limited to typos and punctuation errors and failure to comply with the requested page layout, and this applies notwithstanding the translator’s obligation to immediately rectify the technical errors found;

- penalty of 20% of the translation price will apply in the event of significant non-compliance with technical requirements, including but not limited to a high number of typos or repeated punctuation errors and inappropriate terminology in the context of the requested translation, and this applies notwithstanding the translator’s obligation to immediately rectify the technical errors found;

- penalty of 100% of the translation price will apply if there are mistranslations (wrong or contrary meaning) that deeply distort the meaning of the source text and/or errors with respect to numbers etc. In the event of such negligent breach, the translator will have no right to claim any amount whatsoever.

.....

Would you sign the contract?

Bin


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xxxUSER0059  Identity Verified
Finland
Local time: 05:20
English to Finnish
+ ...
Definitely not Aug 21, 2008

Bin Tiede wrote:

Would you sign the contract?


No! Such “penalties” are alien to all normal terms of contract I have seen.


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Roy Williams  Identity Verified
Austria
Local time: 04:20
German to English
Don't think so Aug 21, 2008

I don't think I would sign such a contract, It sounds like something one could use to get out of paying the full rate whenever they felt like it. But thats just my opinion

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Alfredo Fernández Martínez  Identity Verified
Spain
Local time: 04:20
English to Spanish
+ ...
They are trying to rip you off in a kind of legal way Aug 21, 2008

By agreeing with such terms, they can withhold payment forever, on any grounds, such as synonym words, lack of technical expertise, etc.

I simply do not like working for free.

A definite NO!

Plus, I would let them know why...


Alfredo


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Marcus Geibel
Germany
Local time: 04:20
English to German
NO! Aug 21, 2008

Could not agree more with Thor and Alfredo!

All the best
Marcus


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Narcis Lozano Drago  Identity Verified
Spain
Local time: 04:20
Member (2007)
English to Spanish
+ ...
Yes, of course Aug 21, 2008

If they add this clause:


In the event of any minor non-compliance with technical requirements, including but not limited to typos and punctuation errors and failure to comply with the requested page layout IN THE ORIGINAL TEXT, the translator will receive 200% of the amount of the translation price, without any need to submit the finished translation.



Regards,

Narcis


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Katalin Horváth McClure  Identity Verified
United States
Local time: 22:20
Member (2002)
English to Hungarian
+ ...
Read this, too Aug 21, 2008

This thread reminded me of another recent one:

http://www.proz.com/topic/113081

And I like the response from Narcis!


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Charlie Bavington  Identity Verified
Local time: 03:20
French to English
And this Aug 21, 2008

http://www.proz.com/forum/business_issues/111593-would_you_sign_this_contract.html

In this particular case, the two main points I would raise are:
a) how long after delivery is this allowed to take place
b) who decides on what amounts to "non-compliance"?

Other than that, I'll say here what I said there and which no-one has really answered: if a client, any client, agency or otherwise, wishes to draft a clause or two to impress upon the translator the importance of not turning in half-arsed rubbish and expecting to get paid full whack, it is bound to sound a wee bit fearsome.
Everybody in these threads always assumes bad faith - that it's always a ruse to avoid payment etc. If you have a chat with them about what they are trying to achieve, you'll soon suss whether they are indeed gonna rip you off at the earliest oppportunity or if they're just trying to make sure everyone does things properly.


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Astrid Elke Witte  Identity Verified
Germany
Local time: 04:20
Member (2002)
German to English
+ ...
Evasion of business risk? Aug 21, 2008

Charlie Bavington wrote:

Everybody in these threads always assumes bad faith - that it's always a ruse to avoid payment etc. If you have a chat with them about what they are trying to achieve, you'll soon suss whether they are indeed gonna rip you off at the earliest oppportunity or if they're just trying to make sure everyone does things properly.


Maybe they are trying to "make sure everyone does things properly". However, it is their obligation to take on the business risk when they try out a new translator for the first time. They can place a minimal order, for instance, and then pay for it and decide whether or not to work with that particular translator again. Every other type of business has to take risks, so why should translation agencies be an exception?


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ViktoriaG  Identity Verified
Canada
Local time: 22:20
English to French
+ ...
I had something similar in mind Aug 21, 2008

Narcis Lozano Drago wrote:

In the event of any minor non-compliance with technical requirements, including but not limited to typos and punctuation errors and failure to comply with the requested page layout IN THE ORIGINAL TEXT, the translator will receive 200% of the amount of the translation price, without any need to submit the finished translation.


My original idea was more like "in the event the source text contains any errors which are deemed BY THE TRANSLATOR to be likely to introduce errors into the translation, the translator is held harmless from any claims for any errors in the translation caused by such errors and is entitled to an additional 5% of the total invoice amount for every occurrence of such errors".



Seriously, though, it sounds to me as though they were having translators pay for their reviewing/proofreading fees. So, their human resources pay for their business expenses. Pure profit for them! In such cases, I would simply add a clause to the contract as follows: The agency is responsible and liable for all quality assurance measures, at their own expense. The translator shall not take part in any such quality assurance measures and shall not be held liable for such in any way.

Frankly, with such business practices, I believe such agencies simply should not exist. To me, this is unfair competition - we get the contracts, charge the high price but don't do our job as would have those whose work we steal, and we hire them at rock-bottom prices to make them our slaves.

[Edited at 2008-08-21 17:07]


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Alfredo Fernández Martínez  Identity Verified
Spain
Local time: 04:20
English to Spanish
+ ...
I was actually given a rather similar contract, but I refused to sign it until modified Aug 21, 2008

Casting back some memories....


I refused, as it stated (I quote literally, changing real names for the legal parties):



2. The contractor agrees that after receiving any document by AGENCY’s Client, associate or affiliate and/or during the period it provides translation services, and for a period of three (3) years thereafter, he/she shall not compete with AGENCY in any manner, either directly or indirectly, whether for compensation or otherwise, or assist any person or entity to compete with AGENCY, with respect to its Client, and any of its subsidiaries or affiliates and associates. Contractor specifically agrees that it will not solicit or accept business or employment from Client or any subsidiary or affiliate, or engage in a like or similar occupation or profession at a facility operated by AGENCY ’s associate, Client or any subsidiary or affiliate, during the period set forth herein.


The 3-year-period I did find abusive indeed, but I somehow thought It could be understandable from a business point of view.


However, have a read now:


4. Contractor shall indemnify AGENCY for all costs, business losses, including reasonable attorney's fees, incurred as a result of contractor’s or Consultant's breach of this Agreement. The contractor accepts complete and comprehensive responsibility.

5. This Agreement is made in, governed by, and shall be construed in accordance with the US laws of (US State).



I did refuse to sign these two clauses, let's call it, 'piece of paper', categorically and upfront.

The agency was informed of my refusal accordingly. Kindly enough, they agreed to remove these two clauses, and they resent it. I subsequently signed it, faxed it off, and it was all very well ever since between them and I.
This agency has been one of my best and most professional clients ever since.

What had happened was, and I found out later from colleagues: the previous translator and interpreter had just left after 1 week.
So the end client felt the agency had left them standing up. So the end client and/or the agency were trying to make sure this vacuum in the post did not happen again.

I also met that manager at the end client who.. mmmm, let's say, had a rather 'overfamiliar' and rude way of treating his colleagues, employees, and anyone around him, for that matter.


Lesson to learn: Sometimes, it is a legal formality imposed by the end client, or merely a standard, proforma type, contract.
Therefore, if the agency is reasonable, and omits those terms, they may be even 'OK' to work for them.

It goes without saying that I would, first of all, check the Blue Board for any traces of bad practice, unpaid translators, etc.
And if there are no records, I normally ask for advance payment for extensive assignments.


All the best,

Alfredo

** Edited for better understanding: 18:17 CET **



[Edited at 2008-08-22 16:17]


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ViktoriaG  Identity Verified
Canada
Local time: 22:20
English to French
+ ...
Some comments on Alfredo's post Aug 21, 2008

Alfredo, I find you are being generous with AGENCY. I found other problems with their clauses besides what you personally find unfair.

shall not compete with AGENCY in any manner, either directly or indirectly


Some may not construe this the way I do, but it is my understanding that you would not be allowed to have anything to do with that client whatsoever for three years. They did use the word "indirectly". This means that if their client eventually buys services from a different agency, and you just happen to be working with that agency as well, and you participate in one of that client's projects, without even being aware of their identity, you could be sued. Oh please! Let's be reasonable. Just how do they imagine you can be aware of who commissioned which assignment in what agency?

specifically agrees that it will not solicit or accept business or employment from Client or any subsidiary or affiliate


That they require that you don't willingly solicit said client is understandable. But that they require that you don't accept assignments from them if they solicit your services is an aberration. What if that client dislikes working with AGENCY because they offer sloppy quality assurance but on the other hand liked the work done by some of their translators and prefers to work with them directly? This is unfair not just to you, but to the client as well. Simply put, they are keeping the client from working with their choice of freelancers if they wish. I am unsure this is even legal.

The contractor accepts complete and comprehensive responsibility.


So, if they lose a $300,000 contract to another agency you happen to be working with, you owe them $300,000? Oh, pullleese!

[Edited at 2008-08-21 20:41]


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Amy Duncan  Identity Verified
Brazil
Local time: 23:20
Portuguese to English
+ ...
Agree with Astrid Aug 21, 2008

Astrid Elke Johnson wrote:



Maybe they are trying to "make sure everyone does things properly". However, it is their obligation to take on the business risk when they try out a new translator for the first time. They can place a minimal order, for instance, and then pay for it and decide whether or not to work with that particular translator again. Every other type of business has to take risks, so why should translation agencies be an exception?



And, after all, every time we translators take on a new client we're taking the risk of whether we'll be paid or not!


Amy


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Charlie Bavington  Identity Verified
Local time: 03:20
French to English
Longer term Aug 21, 2008

Astrid Elke Johnson wrote:
Maybe they are trying to "make sure everyone does things properly". However, it is their obligation to take on the business risk when they try out a new translator for the first time. They can place a minimal order, for instance, and then pay for it and decide whether or not to work with that particular translator again. Every other type of business has to take risks, so why should translation agencies be an exception?


Indeed, and we of course take the risk that we might not be paid at all, so the idea of slowly building up a business relationship is sound for both "sides".

I just think that they are trying to cover themselves long-term - to make sure you take as much care over the hundred and first job as over the first job. AFAIK, most other commercial transactions are covered by some kind of recourse in the event of dissatisfaction with the product or service provided, from simple money-back/credit note arrangements with consumer goods, through to suing for negligence or malpractice or loss of earnings.

Although (as has been covered often on this forum) translators tend not to get sued, I don't see why they should be exempt from some kind of penalty if they turn in shoddy work. The question then is simply one of negotiating fair terms - reasonable timeframes, independent assessment, penalties that do not exceed the cost of the job, etc.


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Rossana Triaca  Identity Verified
Uruguay
Local time: 23:20
Member (2002)
English to Spanish
Abusive contracts vs. wary agencies Aug 21, 2008

I just think that they are trying to cover themselves long-term - to make sure you take as much care over the hundred and first job as over the first job.


    I know it's not a popular view, but I think this is a crucial issue that most people overlooks. It's fairly easy to pass with flying colors a first assignment, but what's really hard, and the true mark of professionalism IMO, it's to maintain the same standard every single time.

    I understand the hesitation behind sentences like "non-compliance" (says who?), but after seeing the atrocities that pass for translations these days I cannot help but understand the position of the other party.

    The first time I worked for certain agency (let's call them Wary Inc.) they had such outlandish terms in their PO that I had to do a double take. I cannot quote them directly but they were along the same lines: "X% deduction if the job is late for X hour(s)", or "reduction of payment to account for costs incurred in meeting the needs of our end client". Since it was a small assignment I took the risk... Wary Inc. is to this day one of my very best clients; I haven't had a single dispute in over 3 years of continuous work flow, and they take the same stringent approach to payment, i.e., they are never late, they are always accurate, and their PMs are the nicest and most efficient people ever.

    Is this an isolated case? I doubt it. My guess is that really big agencies rely on huge translator bases (20+ language pairs), and with a fast turnover they simply cannot use the same people every time, and even if they did, they cannot guarantee as Mr. Bavington said that the 100th job will be as good as the first one.

    I'm not saying you should sign any contract you deem abusive (I personally draw the line at indemnifications, i.e., no way in hell I'm paying for any alleged losses, the most I'm willing to risk is the actual cost of the job), what I'm saying is that I used to dismiss these types of contracts right off the bat but now I read them carefully and do further research. Talk to them, find out what they really want, and even propose amendments if you see fit. As long as the initial proposal it's worth your time, you may land a good client in the end.


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