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Stunning contract requirements
Thread poster: Andrew Catford

Andrew Catford  Identity Verified
United States
Local time: 03:36
Member (2008)
German to English
Feb 5, 2010

I recently received an independent contractor agreement from the Netherlands-based office of a NY translation company. (No names, although there should be!) Most of the legal language in the agreement was unexceptional, and simply reflected the kind of legal outlook for which John Woo became famous.

However, two requirements in the agreement struck me as highly interesting.
a) “Contractor, however, must be available to perform services hereunder at times required by the client for whom such services are being provided.”
b) “The client for which (sic) such services are being performed may designate, in its discretion, a location where Contractor shall perform such translation services.”

In other words, this agreement gives a third party, the agency’s client, with whom the translator has no business relationship, the right to determine when and where the translation work will be done! Wow!!!

Frankly, this strikes me as an outrageous requirement, containing as it does, a completely open-ended commitment on the part of the translator. I wouldn’t sign it. I can’t believe any one in their right mind would sign it, assuming they took the trouble to read the agreement carefully.

I don’t read a lot of independent contractor agreements. My clients tend to do business on a handshake. I am curious how common requirements like these are. If nothing else, it points out the necessity for reading contractor agreements very carefully.

Nothing is dumber than signing something that
1) you didn’t read carefully
or
2) you disagree with, but don’t believe the circumstances will ever arise.


 

Richard Bartholomew  Identity Verified
Germany
Local time: 11:36
Member (2007)
German to English
case by case Feb 5, 2010

First, you can consult the blue board to find out what experiences others have had with this agency. If you find a trail of abuse you'll know what not to do. If everything looks alright on the Blue Board, but the client or agency still abuses the rights you have granted it by signing the contract, then I'd simply refuse future work with the offenders and notify colleagues via the blue board.

Second, I would find out what times and places the particular client intends to specify. If these are unacceptable, simply refuse the assignment. If the client wants to change these parameter values later, then that would could come under discussion. I don't believe any enforcable contract can require you to accept assignments.


 

Kevin Fulton  Identity Verified
United States
Local time: 05:36
German to English
Could be a good thing! Feb 5, 2010

Would you turn down an all expense-paid trip to the Cayman Islands to translate financial statements?

On a more serious note, I have been asked to work onsite when there have been sensitive documents involved, or in cases when close consultation with the end client's employees is required (e.g., lawyers or engineers). In all cases I have been well-compensated for the jobs, and usually I've gotten free meals as well.

Although the agreement may sound outrageous on the face of it, if the request is reasonable and your inconvenience is compensated, there's no reason not to take assignments requiring a specific venue.

[Edited at 2010-02-05 19:02 GMT]


 

Giuseppina Gatta, MA (Hons)
Member (2005)
English to Italian
+ ...
I've seen much worse than that... Feb 5, 2010

First thing, I agree with other colleague, it might be a good thing.
Second, I have seen much worse than that: Once I received a contract from a NY agency which contained following clause (obviously I am not transcribing it, only rendering its meaning): They can sue me for an unlimited amount of money, without even having to tell me why, in case something goes wrong with my translation. I think this is the craziest clause I've ever read in my life. It goes without saying that I did not sign the contract...


 

Brannigan
Italy
Local time: 11:36
Italian to English
+ ...
who said it's paid? Feb 5, 2010

I see what you mean Kevin but the clause should state how much he would be paid for travelling to XX and that all the travel expenses would actually be paid (in advance) by his employer (i.e. the agency). I guess the important thing this is that it IS an all-expenses paid trip....or..."Andrew, we need you in Frankfurt NOW for 3 days" (sent 23rd December) [in a remote location with very poor public transport and next to no decent accommodation with the WORST restaurants you have ever experienced].

Call me a pessimist why don't you.


 

Claudia Alvis  Identity Verified
Peru
Local time: 04:36
Member
Spanish
+ ...
Ask. You could get some clauses waved or amended. Feb 6, 2010

Some of my clients have sent me contracts with absurd clauses that will never apply to the scope of my job or contracts that I would never sign. I was told that the reason is that they have only one contract for different types AND SIZES of service providers (e.g. freelancers/companies that provide translation/interpreting services)--this saves them money.

Many of those clauses aren't applicable to me in particular. In my experience, you can talk to your PM or contact and have the contract amended or a waiver can be added (and signed!) to show the clauses that aren't applicable to you.

b) “The client for which (sic) such services are being performed may designate, in its discretion, a location where Contractor shall perform such translation services.”
This clause doesn't seem to be legally binding to me (although I'm not a lawyer) and it makes sense for interpreting services. Also, the terms would be specified on a purchase order.

Of course, some clients are just delusional.


 

Charlie Bavington (X)  Identity Verified
Local time: 10:36
French to English
They'd tell you first Feb 6, 2010

Andrew Catford wrote:

In other words, this agreement gives a third party, the agency’s client, with whom the translator has no business relationship, the right to determine when and where the translation work will be done! Wow!!!

I'd seek clarification as to the precise circs, but I would expect this to be considered a material condition to any proposed work offer, and as such would either be mentioned before you agreed to take any job on, or, if requested subsequently, would entitle you to decline/refuse to continue with the job.


 

Yasutomo Kanazawa  Identity Verified
Local time: 18:36
Very absurd Feb 6, 2010

Giuseppina Gatta, MA wrote:

First thing, I agree with other colleague, it might be a good thing.
Second, I have seen much worse than that: Once I received a contract from a NY agency which contained following clause (obviously I am not transcribing it, only rendering its meaning): They can sue me for an unlimited amount of money, without even having to tell me why, in case something goes wrong with my translation. I think this is the craziest clause I've ever read in my life. It goes without saying that I did not sign the contract...


I could understand that they could sue you for an unlimited amount of money, in case something goes wrong with your translation. If my interpretation is correct, if you mistranslate a sentence or a clause which the client thought that it was correct but turned out to be wrong or completely opposite and were subject to financial loss or damage, the company could sue you for giving them a wrong translation. But not the "without even having to tell me why" part. If the above kind of thing happened, shouldn't they tell you WHY they are suing you, and you have absolute right to demand an explanation.


 

Eleftherios Kritikakis  Identity Verified
United States
Local time: 04:36
Member (2003)
Greek to English
+ ...
Whatever... Feb 6, 2010

Andrew, don't take such things seriously.

"I was sick in bed"

"My email didn't work"

"I didn't hear the phone or it didn't work"

"I had a terrible headache"

and so on.

Also,

"They can sue me for an unlimited amount of money, without even having to tell me why, in case something goes wrong with my translation."

ONLY if they win the trial. I can sue you right now for 11 trillion dollars, but I will get it only if I win the trial. They will never win the trial without PROOF (the plaintiff has always the burden of proof), and there is no court in the western world that would try such a case on the basis of "unlimited" amount of money...

These contracts are a pile of junk and they have no force in the market.


 

Oleg Rudavin  Identity Verified
Ukraine
Local time: 12:36
Member (2003)
English to Ukrainian
+ ...
Shaking off liability Feb 6, 2010

Eleftherios Kritikakis wrote:These contracts are a pile of junk

Exactly.

Once, while translating a user manual for a microwave oven, I got stuck at a passage that told users not to worry if they heard gurgling sounds: QUOTE this sound is generated when one of the two compressors start working UNQUOTE.
I contacted the client and the PM wrote back explaining that their engneers just copied a few pages from a manual for a refrigerator...

Every now and then, I get contractor agreements with terms that are strange/absurd/outrageous/discriminating (you can go on with the list). I soon learned that in most cases, these contracts are not intended as an instrument regulating relations between the outsourcer and contractor. Quite a few PM's told me that their companies would be happy to start collaboration without any contracts at all but the local legislation stipulates that they have them on file. So they contact a lawyer, and the latter types a few pages in that queer legalese language. Usually, there is a handful of standard and "normal" provisions as well as a bunch of others. The "other" ones, when decrypted into human language, alwyas read the same: the oursourcer has no liability whatsoever no matter what. Incidentally, many PM's admitted they had never read them and were as amused as myself at some particularly perverse article.

For a few years, I only give these contracts a cursory look, have a good laugh when stumbling across an especially kinky paragraph, and sign them without any remorse knowing that
E.K.: the plaintiff has always the burden of proof
Probably I'll be more cautious when somebody tells me there actually has been a case where the translator was proven guilty (based on the contractor agreement or NDA) and had to compensate the client's losses.


 

Alison Sabedoria  Identity Verified
France
Member (2009)
French to English
+ ...
Don't sign anything you can't agree to! Feb 6, 2010

I was faced with a similar "work wherever we tell you" clause some years ago while teaching at a conservatoire (part of a university) for a few hours a week. The rest of the university sprawled over campuses many miles apart, and to work in any of the other venues I would have spent more time travelling than teaching.

I simply scored through the relevant clause, signed and returned the contract. When I contacted the admin. office expecting trouble, no-one had even raised an eyebrow.

The music business is a legal minefield, and I have sometimes had to renegotiate contracts to protect my own interests. Last year I received a contract for a concert in France that was badly worded and with spelling mistakes (in the programme title even!), so I corrected it myself before returning it, adding a polite note to that effect. Again, no problem, just an inexperienced and overworked administrator.

If you are self employed, you should be setting your own terms. There's a level on the musical ladder where a musician can start proposing terms to a concert promoter, rather that the other way round. The translation world may be different, but if more than a handshake is needed, make sure the contract works for you. You could try asking for (or proposing) a "draft" contract that can be edited by both sides.

And remember that even behind the most hermetic legalese, there's usually just a real person trying to get a job done. Many of them are happy to talk about it.


 

Derek Gill Franßen  Identity Verified
Germany
Local time: 11:36
German to English
+ ...
Negotiate Feb 6, 2010

You are in a position to negotiate.

It is common procedure to cross out the parts you don't like, add the parts you want, and then send the contract back; most legal systems will consider this to be a new offer, which the agency can then accept, decline, or amend again (making it a new offer, which you could then accept or decline).

There is nothing wrong with doing it this way, i.e., coming up with an arrangement with which both parties can agree.

Have fun negotiating! icon_smile.gif

EDITED to add a link to a related article I wrote some time ago on the subject: http://www.proz.com/doc/554


[Edited at 2010-02-06 13:32 GMT]


 

Krzysztof Kajetanowicz (X)  Identity Verified
Poland
Local time: 11:36
English to Polish
+ ...
find out if it's enforceable Feb 6, 2010

Those ridiculous clauses may or may not have a legal effect. For example, under Polish law anything you sign that violates the 'principles of social coexistence' is null and void. That would be, for example, a clause requiring you to sit down while peeing, unless the contract is for acting in a bizarre movie and not for translation. Furthermore, even the clause is effective, it may not be enforceable in practice, so you only have an ethical dilemma. Ask a lawyer friend. Pay attention to the governing law clause in the agreement.

 

Andrew Catford  Identity Verified
United States
Local time: 03:36
Member (2008)
German to English
TOPIC STARTER
The real point of the agreement Feb 6, 2010

Thanks to all of you who responded with your thoughts.

Curiously, the bulk of the agreement drafted by the agency's crack lawyer is an attempt to comply with US tax law concerning self-employment by establishing that the translator is NOT an employee of the agency, but a totally independent contractor.

Generally, the Internal Revenue Service in the US treats independent contractor status with suspicion. It is common in many industries, particularly construction, to falsely claim independent contractor status in order to enjoy the tax advantages of being self-employed. Several tests are applied to determine whether the contractor is actually independent, or effectively in an employee/employer relationship.

One of these tests is: Who decides where and when the work is done? If the contractor is free to determine their own working hours and location, it enhances the claim to non-employee status. An agreement that allows an agency/agency client to determine working hours and location might well have the opposite effect.

Perhaps this is the agency equivalent of shooting yourself in the foot.


 

Sheila Wilson  Identity Verified
Spain
Local time: 10:36
Member (2007)
English
+ ...
Even less-ridiculous clauses may be classed as abusive Feb 6, 2010

Krzysztof Kajetanowicz wrote:
Those ridiculous clauses may or may not have a legal effect. For example, under Polish law anything you sign that violates the 'principles of social coexistence' is null and void. That would be, for example, a clause requiring you to sit down while peeing, unless the contract is for acting in a bizarre movie and not for translation.


I have a much less extreme example of a contract that was deemed by the French courts to be abusive:
I (so stupidly!icon_redface.gif) signed a contract to provide 38 hours of English training to a businessman through an agency, without reading it carefully enough. After 12 hours, the man accepted that at 60 years old he was NOT going to go from beginner to fluent in 38 hours and he lost all interest, cancelling the course. I submitted my invoice for 12 hours' teaching, only to be reminded that I had agreed to be paid "at the successful conclusion of the training course". When they broke off all communication with me I sent all the papers to the courts, who ruled that the clause was abusive and that, since there was no suggestion that my work had been anything less than satisfactory, I had a right to be paid for the hours I had done. The agency had to pay for my time, my court and bailiff expenses and a good rate of interest.

The moral of the story is that, even if you have been stupid enough to put your signature to unfair clauses in a contract, you MAY not be held to them.


 
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