Agency agreement - is it me?
Thread poster: Paul Stevens
Paul Stevens  Identity Verified
Local time: 11:58
Member (2003)
Spanish to English
+ ...
Jul 27, 2011

Earlier today, I received a job offer from a Italian agency (new to me) for a Sp>En job, which was more or less at the "green light" stage, when the PM sent me their NDA and General Conditions to sign. The NDA seemed OK, but there were a couple of clauses in the General Conditions to which I took exception. The one which took me most by surprise was the one worded as follows (NB the General Conditions were in Italian, but the English translation was also provided by the agency):

"Final acceptance of the translation work depends on the express unreserved approval of the End Customer. The invoice for work supplied by the Contractor shall be paid in accordance with the Purchase Order, however such payment shall be considered as subordinate to the final approval by the End Customer. Any payments made by the Company do not constitute acceptance, not even partial acceptance, of the work supplied; the Contractor is obliged to repay any such paid sums in the case the work is not finally accepted by the End Customer".

I refused to accept this clause because I felt that I was laying myself open to the possibility (albeit fairly remote) of being asked by the agency to repay the full amount of an invoice in the event that the client suddenly decided, maybe months or years after the event, that he could not approve the translation for some relatively trivial reason, such as the omission of a full stop at the end of a paragraph.

Obviously there can, potentially, be any comeback on a translator at any time for work undertaken by him/her if he/she has submitted sub-standard work, but, by agreeing to this clause, I wouldn't have been giving myself a leg to stand on in the event of a trivial or unjustified complaint by the client.

I was told by the PM that they could not delete the clause as they are a big company and they have a lot of suppliers all over the world. I politely told them that, since the clause could not be deleted, I could not work with them.

This agency has quite a few Blue Board entries, most of which give a rating of 5, so, in all likelihood, it is a pretty decent agency. However, this incident made me wonder how many of the translators working for that agency had actually read the General Conditions in full and why any translator would be happy to accept this clause, which is certainly not in his/her interest.....


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Sergei Tumanov  Identity Verified
Local time: 13:58
English to Russian
+ ...
In a similar situation Jul 27, 2011

I send the prospective business partner to hell.


[Edited at 2011-07-27 16:45 GMT]


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Joakim Braun  Identity Verified
Sweden
Local time: 12:58
German to Swedish
+ ...
Hilarious! Jul 27, 2011

What nonsense. They're unloading their entire business risk onto you. Even if this seemed equitable to you, how would you know that the end client actually did refuse to pay?

Forget about these bottom-feeders.


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Rodion Shein  Identity Verified
Russian Federation
Local time: 13:58
Member
English to Russian
+ ...
Be careful Jul 27, 2011

Sergei Tumanov wrote:

I send the prospective business partner to hell.


[Edited at 2011-07-27 16:45 GMT]


Sergei has specified a correct roadmap for such clients. And it doesn't matter, whether they are small or big ones. I wonder, if it's a trend to include tricky clauses in agreements — recently I stopped working with a big agency, when they amended their agreement to include some traps of the kind. Another agency agreed to rollback to the previous version, when I let them know that I would not be able to accept new terms and conditions.

Some years ago, signing NDAs and SPAs was a mere formality; however, it seems that now we should be careful enough and read them thoroughly.

[Edited at 2011-07-27 17:08 GMT]


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Peter Shortall  Identity Verified
Local time: 11:58
Member
French to English
+ ...
Trying to have their cake and eat it Jul 27, 2011

I wouldn't have accepted that clause either. I understand that agencies like to have certain safeguards, but there are also certain risks inherent in their business, and one of them is that a client may "reject" a translation and refuse to pay, even if there's nothing wrong with it. Chasing up reluctant payers may be more difficult than withholding a translator's fee, but it doesn't mean that a translator should suffer the consequences if an end client acts in bad faith. And supposing the agency tells you that a client refused to pay for a translation, how could you be certain the agency is telling the truth? Unless you could contact the end client directly (which might breach an NDA), you'd have no way of verifying that.

In a strange way, it's almost refreshing to hear that the agency wouldn't delete the relevant clause. Once, when I was deciding whether to sign a "Service Level Agreement" with a large international company, I found some clauses that seemed too onerous. What also bothered me was what the agreement didn't mention. For instance, it said I would have to use whatever tools they asked me to, but it didn't mention that I would be billed monthly for access to the online platform whether I received any jobs or not, as I discovered when I did some digging. The PM asked me which clauses I didn't agree to and offered to delete them at once. Combined with the other things I found out about the company, this try-it-on attitude of "let's see if they'll swallow this and backtrack if they complain" concerned me even more. I never signed the SLA.

[Edited at 2011-07-27 17:42 GMT]


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Laurent KRAULAND  Identity Verified
France
Local time: 12:58
French to German
+ ...
Only one remedy Jul 27, 2011

Either clients (and I don't care whether they are end users or agencies) abide by my GT&C and sign them without reservations OR they have to look for another translation services provider.

I have no understanding for such clients who will send their GT&C and NDA along with their first order - I see this as a form of blackmail.

I for example declined assignments for which the agencies only sent their clauses about penalties, correction fees etc. together with their PO, not earlier. And said agencies have lots of 5's in their BB ratings.

It doesn't mean anything.


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Charlie Bavington  Identity Verified
Local time: 11:58
French to English
Evidence? Jul 27, 2011

Hypothesising that this clause does not seem unduly onerous on you, but equally that you are not a complete sucker - how are they planning to prove non-acceptance, and, therefore, that you owe them a refund of what they've paid?

Proving a negative is, of course, notoriously tricky, if not impossible, but in this case we can perhaps muse upon the option that proof of acceptance, for every single word you translate, might be equally deemed proof of your entitlement to assume you will not be asked for a refund later. Do they plan to send you a copy of each and every documented acceptance? They must surely have documented acceptance, right? If non-acceptance is also documented, do they plan to send you that as proof their refund request is justified? And it goes without saying, you would need to see cast iron proof that the agency either had not been paid, or had also had to refund their end client. So are they happy for you to see their bank statements, for example?

In short, while I agree that, prima facie, this does not seem the greatest clause devised, I might toy with them, asking how exactly this clause is supposed to operate, along the lines suggested above. I would be interested to see how thoroughly this clause has been thought out.


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Sheila Wilson  Identity Verified
Spain
Local time: 11:58
Member (2007)
English
+ ...
What are their payment terms? Jul 27, 2011

If they pay within a few days of receiving the translation, then I could imagine they would need to have some way to get back some or all of their money if their client said the translation was useless - although they ought not to be giving a big job to an unknown translator with no creden tials.

On the other hand if they pay at even 30 days (and this type of company often pays at 60 days) then their client will have ample time to come back to them and complain before they part with their money. You can't expect me to believe they will entertain client complaints 45 days after delivery.

My invoices state that any reasonable quality issues will be discussed until the invoice is due - after that the translation is deemed to have been accepted in full and payment is due immediately if not yesterday. You can't possibly be fairer than that without assuming their business risk. They are just trying to bully independent translators.


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Paul Stevens  Identity Verified
Local time: 11:58
Member (2003)
Spanish to English
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TOPIC STARTER
Thanks for your comment Jul 28, 2011

Thank you for all of your comments.

Peter Shortall wrote:

I wouldn't have accepted that clause either.... And supposing the agency tells you that a client refused to pay for a translation, how could you be certain the agency is telling the truth? Unless you could contact the end client directly (which might breach an NDA), you'd have no way of verifying that.[Edited at 2011-07-27 17:42 GMT]


This is what particularly concerned me, Peter! Also, since I would not necessarily know who the "End Customer" was, the agency could also, potentially, produce a bogus document which they claimed to be from the "End Customer" just stating that they did not accept my work (without giving any reason) and, according to the clause, the agency might be entitled to claim repayment of all or part of my fee!

Charlie Bavington wrote:

how are they planning to prove non-acceptance, and, therefore, that you owe them a refund of what they've paid?

Charlie, I do not read it that the agency has the onus of proving non-acceptance, so, if I had accepted their clause and asked them to prove it, I might well be looking at substantial legal expenses and considerable time and effort if the agency was not forthcoming with the relevant evidence of non-acceptance.

If you add into the equation the fact that I am not familiar with the intricacies of Italian law and the agreement states that any disputes under the agreement would be subject to the exclusive jurisdiction of a named Italian court, then I felt that it was better to be safe than sorry!

Charlie Bavington wrote:

In short, while I agree that, prima facie, this does not seem the greatest clause devised, I might toy with them, asking how exactly this clause is supposed to operate, along the lines suggested above. I would be interested to see how thoroughly this clause has been thought out.

Indeed it might have been interesting, but I didn't really want to "toy" with them, as I felt very strongly that the clause was totally unacceptable to me and am surprised that any translator worth his/her salt would accept this clause, as it reads, under any circumstances.

Sheila Wilson wrote:

On the other hand if they pay at even 30 days (and this type of company often pays at 60 days) then their client will have ample time to come back to them and complain before they part with their money. You can't expect me to believe they will entertain client complaints 45 days after delivery.

My invoices state that any reasonable quality issues will be discussed until the invoice is due - after that the translation is deemed to have been accepted in full and payment is due immediately if not yesterday. You can't possibly be fairer than that without assuming their business risk. They are just trying to bully independent translators.

Whilst I do not state this on my invoices, Sheila, I did point out to this agency that I would not entertain any requests for repayment of all or part of the fee once it had been paid to me as the client should have sufficient time to raise any queries before payment was due to me.

[Edited at 2011-07-28 09:50 GMT]

[Edited at 2011-07-28 09:57 GMT]


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Charlie Bavington  Identity Verified
Local time: 11:58
French to English
Well, I'm obviously rubbish, but anyway... Jul 28, 2011

Paul Stevens wrote:
Charlie Bavington wrote:

how are they planning to prove non-acceptance, and, therefore, that you owe them a refund of what they've paid?

Charlie, I do not read it that the agency has the onus of proving non-acceptance,

I do. They are the ones demanding repayment on the grounds their end-client has not paid them or been refunded. I'd want proof.

better to be safe than sorry!
Always

Paul Stevens wrote:
Charlie Bavington wrote:
In short, while I agree that, prima facie, this does not seem the greatest clause devised, I might toy with them, asking how exactly this clause is supposed to operate, along the lines suggested above. I would be interested to see how thoroughly this clause has been thought out.

Indeed it might have been interesting, but I didn't really want to "toy" with them, as I felt very strongly that the clause was totally unacceptable to me and am surprised that any translator worth his/her salt would accept this clause, as it reads, under any circumstances.

Thanks for the subtle implication there.
Nonetheless, if the agency were one I was otherwise interested in (although if years on Proz have taught me anything, it is to think twice or three times before getting involved with agencies in certain countries), it might be of value on both sides to investigate the foundations and enforceability of such a clause. Perhaps "toying" was the wrong word, but it would certainly be instructive to find out the procedure for invoking such a clause, as they see it. (And yes, that procedure would need to cost me nothing!)

[Edited at 2011-07-29 08:28 GMT]


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Paul Stevens  Identity Verified
Local time: 11:58
Member (2003)
Spanish to English
+ ...
TOPIC STARTER
I'm probably the one who's rubish, Charlie! Jul 29, 2011

Charlie Bavington wrote:

Paul Stevens wrote:
Charlie Bavington wrote:

how are they planning to prove non-acceptance, and, therefore, that you owe them a refund of what they've paid?

Charlie, I do not read it that the agency has the onus of proving non-acceptance,

I do. They are the ones demanding repayment on the grounds their end-client has not paid them or been refunded. I'd want proof.

And so indeed would I, Charlie, but I'm not convinced that categoric proof has to be provided by the agency as the clause reads. I’m not well-versed in Italian law, so I can’t really say how it would be interpreted by an Italian court of law, but hopefully you are right.

Charlie Bavington wrote:

Paul Stevens wrote:
Charlie Bavington wrote:
In short, while I agree that, prima facie, this does not seem the greatest clause devised, I might toy with them, asking how exactly this clause is supposed to operate, along the lines suggested above. I would be interested to see how thoroughly this clause has been thought out.

Indeed it might have been interesting, but I didn't really want to "toy" with them, as I felt very strongly that the clause was totally unacceptable to me and am surprised that any translator worth his/her salt would accept this clause, as it reads, under any circumstances.

Thanks for the subtle implication there.

I’m probably being very dense, but I'm not quite sure what subtle implication you’re referring to here.

Charlie Bavington wrote:
Nonetheless, if the agency were one I was otherwise interested in (although if years on Proz have taught me anything, it is to think twice or three times before getting involved with agencies in certain countries), it might be of value on both sides to investigate the foundations and enforceability of such a clause. Perhaps "toying" was the wrong word, but it would certainly be instructive to find out the procedure for invoking such a clause, as they see it. (And yes, that procedure would need to cost me nothing!)

[Edited at 2011-07-29 08:28 GMT]

I might well have delved into this in more detail had (a) the job which the agency were asking me to take on was not an urgent one and therefore there was very limited time to get to the bottom of matters and (b) this was the only issue that concerned me. The other issue was the payment terms – they agreed to my standard terms but their agreement, which they subsequently sent, clearly stated less beneficial payment terms (which I would certainly not accept), so it concerned me slightly that they might not pay within the terms that I had offered and they had agreed (call me a doubting Thomas, if you like!).


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Charlie Bavington  Identity Verified
Local time: 11:58
French to English
Prob'ly a misunderstanding then Jul 29, 2011

Since I was showing in interest in the how such a term would be invoked, and therefore by implication not necessarily immediately ruling it out under every possible circumstance, I may have misinterpreted your remark about value in terms of sodium chloride.

I think the point about proof or evidence is one worth investigating (if only in discussion between ourselves) since any clause needs to be pretty watertight for the benefit of all concerned, and I genuinely wonder (as I often do) how well thought-out this is. I don't blame any intermediary for attempting to have recourse against its suppliers in the event its end-customers are dissatisfied; I see no objection to the idea in principle and am insured against it. But there needs to be balance and reasonableness. I don't believe that translators should be free to deliver any old crap with impunity as long as the agency "accepts" the delivery, nor do I believe that agencies should be able to nail our testicles to the floor over a missing comma. I'm now actually genuinely interested in the agency's view of how they see this thing working in practice. Perhaps they'll contact me!

Anyway, as you say, and I'm not surprised to hear it given the geographical location of the agency, there seem to be other issues too, and there is such a thing as picking your battles


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Paul Stevens  Identity Verified
Local time: 11:58
Member (2003)
Spanish to English
+ ...
TOPIC STARTER
No worries, Charlie" Jul 29, 2011

Charlie Bavington wrote:

Since I was showing in interest in the how such a term would be invoked, and therefore by implication not necessarily immediately ruling it out under every possible circumstance, I may have misinterpreted your remark about value in terms of sodium chloride.

I can assure you, Charlie, that there was no subtle implication on my part in the section of my post which you quoted.

Charlie Bavington wrote:
I don't blame any intermediary for attempting to have recourse against its suppliers in the event its end-customers are dissatisfied; I see no objection to the idea in principle and am insured against it. But there needs to be balance and reasonableness. I don't believe that translators should be free to deliver any old crap with impunity as long as the agency "accepts" the delivery, nor do I believe that agencies should be able to nail our testicles to the floor over a missing comma.

Agreed.


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