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Looking for examples of abusive clauses in contracts translators are asked to sign
Thread poster: Łukasz Gos-Furmankiewicz

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 19:54
English to Polish
+ ...
Jun 20, 2013

Dear Colleagues,

Some of you may remember my tongue-in-cheek thread about some clauses you can find in translation agency contracts. Like I said there, I intend to follow up with an article and, in the meantime, also during a Proz.com virtual conference next week.

To this end, I'd like to ask you to share not only the most egregious examples of unconscionable clauses but also the run-of-the-mill contractual nuisance that makes your life difficult or makes you feel bad about your work or your particular agency or client. This includes also unreasonable arrangements and expectations stated in actual contracts, payment orders or offers (but not mere job ads or inquiries about availability or rates).

Of particular interest to me are weasel expressions and phrases that rely on an expectation that the translator won't read careful or won't be able to penetrate the legalese or some other technical jargon (e.g. unexplained acronyms) or will be pressured to sign immediately without reading. However, I am almost equally interested in open, blatant examples where no attempt at disguise is made.

... Speaking of which, a related problem I'm looking at is the peculiar manner and tone in which certain standard contracts address translators. This includes anything that may or may not have any particular legal significance but is insulting or otherwise grossly inappropriate.

In other words, zombie clauses.

Please avoid naming or otherwise identifying the outsourcer or client who asked (or 'asked') you to sign the offending clause, even if you yourself aren't posting under your real name (that could still count as a violation of your confidentiality obligations if the outsourcer is identifiable and the contract itself was confidential). Do make sure that you aren't incurring unnecessary risks – I don't want you to lose a client you can't afford to lose. I am not asking you to share anything your obligations prevent you from sharing.

Thank you.

[Edited at 2013-06-20 03:54 GMT]


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Giuseppina Gatta, MA (Hons)
Member (2005)
English to Italian
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Do you need the precise verbiage? Jun 20, 2013

I have tossed the contracts which I received and contained zombie clauses, since I don't like to keep this kind of stuff in my computer.

If you only need the contents of these clauses, I still remember one, which was particularly appalling, but if you need the precise verbiage I cannot retrieve it.

The contents was that the agency could sue me for an undetermined amount of money and without having to disclose the reason of their lawsuit. I don't think it gets crazier than that. The agency was located in NY State.


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LegalTransform  Identity Verified
United States
Local time: 13:54
Member (2002)
Spanish to English
+ ...
Here are a few Jun 20, 2013

http://www.proz.com/forum/business_issues/138614-crazy_translation_contract_im_just_a_translator_please_abuse_me.html

http://www.proz.com/forum/business_issues/211312-wow_outsourcer_clauses_just_get_better_and_better.html


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 19:54
English to Polish
+ ...
TOPIC STARTER
Thanks! Jun 20, 2013

Giuseppina Gatta, MA (Hons) wrote:

I have tossed the contracts which I received and contained zombie clauses, since I don't like to keep this kind of stuff in my computer.

If you only need the contents of these clauses, I still remember one, which was particularly appalling, but if you need the precise verbiage I cannot retrieve it.

The contents was that the agency could sue me for an undetermined amount of money and without having to disclose the reason of their lawsuit. I don't think it gets crazier than that. The agency was located in NY State.


No, Giuseppina, just a general description of what the clause was supposed to do will be fine.

@Jeff: Thank you!


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LEXpert  Identity Verified
United States
Local time: 12:54
Member (2008)
Croatian to English
+ ...
Some examples Jun 20, 2013

Don't have the exact wordings anymore, but here are a few examples I've seen:

1) Stealth survivability clauses, in which the non-complete clause, within the body of the agreement, is agreed for the duration of the agreement, while a subsequent clause buried toward the end of the agreement then states that certain clauses, including the non-compete, will survive the agreement indefinitely. I can certainly understand this for confidentiality clauses, but often they will throw all sorts of wacky items into this section to see what sticks.

2) You shall not solicit business from any person whom you come into contact with in the course of completing this assignment.

*Any* person? Really? Even the stranger next to me on the subway while on the way to the assignment, or someone I chat with while waiting for the client, but who is not related to the assignment in any way?

3) Unrestricted liability should anybody sue the agency for any reason [in relation to an assignment you worked on]. The parenthetical is mine, because that's what I assume they meant. Laughably, the actual wording didn't even restrict liability to your negligence - or even to something you were involved with. It was just, basically "They sue us, we sue you".

4) Pretty much anything involving the client's attorney's fees.


[Edited at 2013-06-20 14:45 GMT]


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Nicole Schnell  Identity Verified
United States
Local time: 10:54
English to German
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Is it OK to send excerpts via email? Jun 20, 2013

Before the contracts were amended.

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Andrea Riffo  Identity Verified
Chile
Local time: 14:54
English to Spanish
On deadlines Jun 20, 2013

This was part of a contract I was asked to sign by a then-potential direct client:

"The PROVIDER will deliver the assigned translations within the deadlines stated below. Failure to do so will carry a penalty:

180 to 3600 words -> 3 days
3601 to 9000 words -> 4 days
9001 to 27000 words -> 5 days
27001 to 54000 words -> 7 days"


Needless to say, I politely declined.

PS: I forgot to add, there was an annex that set the % penalty for different types of mistakes. Basically, if someone were dumb enough to accept 50,000 words with a 7-day deadline (note that it isn't even business days), they would end up being paid nothing for it once all the potential typos, grammar errors, etc were added.

[Edited at 2013-06-20 16:48 GMT]


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 19:54
English to Polish
+ ...
TOPIC STARTER
Sure! Jun 20, 2013

Nicole Schnell wrote:

Before the contracts were amended.


Thanks, Nicole! Looking forward to that. If only you could just please remove any company and personal names. (Sorry for the bother, but personal data protection is bonkerz in the EU.)

[Edited at 2013-06-20 20:43 GMT]


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 19:54
English to Polish
+ ...
TOPIC STARTER
Thanks, Rudolf! Thanks, Ariffo! Jun 20, 2013

Rudolf Vedo CT wrote:

Don't have the exact wordings anymore, but here are a few examples I've seen:

1) Stealth survivability clauses, in which the non-complete clause, within the body of the agreement, is agreed for the duration of the agreement, while a subsequent clause buried toward the end of the agreement then states that certain clauses, including the non-compete, will survive the agreement indefinitely. I can certainly understand this for confidentiality clauses, but often they will throw all sorts of wacky items into this section to see what sticks.


Oh, that one! I thought I was mostly theorising when I thought about that possibility (given how easy it is and all), but it seems zombie farmers have already come up with the idea and used it in real life. How sad.

2) You shall not solicit business from any person whom you come into contact with in the course of completing this assignment.

*Any* person? Really? Even the stranger next to me on the subway while on the way to the assignment, or someone I chat with while waiting for the client, but who is not related to the assignment in any way?


Yeah, been there seen that. Mostly looks like an inhouse agreement being recycled by someone without the necessary knowledge and skills. I actually doubt they'd really expect you to content yourself with like $200 amount of work per month from them and no other business.

3) Unrestricted liability should anybody sue the agency for any reason [in relation to an assignment you worked on]. The parenthetical is mine, because that's what I assume they meant. Laughably, the actual wording didn't even restrict liability to your negligence - or even to something you were involved with. It was just, basically "They sue us, we sue you".


Yeah, including an end client forgetting which agency did which part of a large procurement translation, for example. That's where phasing out the professional language company and replacing it with simply business leads.

4) Pretty much anything involving the client's attorney's fees.


Let me guess: no reasonable attorney fees, just attorney fees?

ariffo wrote:

This was part of a contract I was asked to sign by a then-potential direct client:

"The PROVIDER will deliver the assigned translations within the deadlines stated below. Failure to do so will carry a penalty:

180 to 3600 words -> 3 days
3601 to 9000 words -> 4 days
9001 to 27000 words -> 5 days
27001 to 54000 words -> 7 days"


Needless to say, I politely declined.


Those are some zombie volumes indeed.

PS: I forgot to add, there was an annex that set the % penalty for different types of mistakes. Basically, if someone were dumb enough to accept 50,000 words with a 7-day deadline (note that it isn't even business days), they would end up being paid nothing for it once all the potential typos, grammar errors, etc were added.


Yeah. Traditional good practice in Poland enables such translations but restricts the liability for them. As in, if you really need that translation then we certainly won't stop you, and we will actually still try to help you, but you just can't complain about small imperfections. And in some cases even big ones.

Looks to me like a zombie farm that doesn't even know how translation works. Either that or someone unscrupulous who does know and benefits from it.



[Edited at 2013-06-20 15:51 GMT]


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Andrea Riffo  Identity Verified
Chile
Local time: 14:54
English to Spanish
. Jun 20, 2013

Łukasz Gos-Furmankiewicz wrote:

PS: I forgot to add, there was an annex that set the % penalty for different types of mistakes. Basically, if someone were dumb enough to accept 50,000 words with a 7-day deadline (note that it isn't even business days), they would end up being paid nothing for it once all the potential typos, grammar errors, etc were added.


Yeah. Traditional good practice in Poland enables such translations but restricts the liability for them. As in, if you really need that translation then we certainly won't stop you, and we will actually still try to help you, but you just can't complain about small imperfections. And in some cases even big ones.


Now that's a reasonable compromise. I've also had (trusted, long-time) direct clients requesting crazy deadlines, which I've sometimes accepted under agreement that (a) they simply cannot expect final top-notch quality, and (b) there are bound to be errors in the final text so THEY will be the ones responsible for checking thoroughly.


Łukasz Gos-Furmankiewicz wrote:
Looks to me like a zombie farm that doesn't even know how translation works. Either that or someone unscrupulous who does know and benefits from it.


They used to be a very good direct client, but they were bought by another company that put different management in place and, well, you know the drill...


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 19:54
English to Polish
+ ...
TOPIC STARTER
Awch Jun 20, 2013

ariffo wrote:

Now that's a reasonable compromise. I've also had (trusted, long-time) direct clients requesting crazy deadlines, which I've sometimes accepted under agreement that (a) they simply cannot expect final top-notch quality, and (b) there are bound to be errors in the final text so THEY will be the ones responsible for checking thoroughly.


'Always' been like that here and possibly in other countries too, that is before the business took over the profession and the industry took over the business. It would be uncommon for a Polish outsourcer to disregard it, but there's no guarantee any more. I'm not really sure if a court of law would still count it as a standard business practice, but it probably should, especially after contacting a translator association or two. That could still could be evaded by expressly redefining urgency in the contract itself, though, and especially including an 'appropriate' representation.

They used to be a very good direct client, but they were bought by another company that put different management in place and, well, you know the drill...


Yup, I do.


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Agnieszka Nowinska  Identity Verified
Poland
Local time: 19:54
English to Polish
+ ...
Cancellation Jun 21, 2013

I remember a clause from a contract with a Krakow (PL) based translation agency who reserved the right to cancel a job in progress without any penalty on its part. I work primarily as a conference interpreter and I quite liked the idea of an agency representative coming up to the booth in the middle of a 3-day event and cancelling On my request, that particular clause was removed but I know some colleagues who'd signed without reading it.

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Marie-Helene Dubois  Identity Verified
Spain
Local time: 19:54
Member (2011)
Spanish to English
+ ...
Other thread in French Jun 21, 2013

http://www.proz.com/forum/french/251416-signer_ou_ne_pas_signer_un_contrat_cadre.html

I thought you might be interested in this thread Łukasz.
Here, a translator has been asked to sign a framework agreement after several years of working with an agency. This agreement imposes a penalty of tens of thousands of euros if the translator fails to adequately protect his computer and the documents therein from being hacked/accessed by other individuals (which I don't think any antivirus software can 100% guarantee).

The funny thing is that the clause has retrospective force so applies to any previous work carried out for this agency too.

There is also a clause which asks that the translator agree ex ante to any future amendments to the contract.

That's about as abusive as it gets right?


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Annamaria Amik  Identity Verified
Local time: 20:54
Romanian to English
+ ...
The Spying Clause Jun 21, 2013

In the 12 years of work as a translator, what irked me most in contracts was what I call the Spying Clause (several agencies tried to enforce this, not just one). It is a subtype of the non-competition clause which is otherwise completely understandable and I fully agree to its reasonable forms.
The Spying Clause stipulates that not only that the translator cannot solicit work from their direct clients (this is perfectly fine and acceptable, I too would impose this if I had any subcontractors), but the translator also had to report to them whenever a direct client of theirs was trying to approach the translator through other channels.
I find this impossible to accept for several reasons (not necessarily in this order):
1. We are not here to enforce any exclusivity contracts between agencies and their direct clients.
2. As long as I don't have a full list of their direct clients, I've no idea how I should know whether or not a direct client approaching me is "theirs". When I asked, they argued that I shouldn't mind the letter of this phrasing, but that I should get the general idea. Well, if the general idea was clear, why should it be spelled out so aberrantly? Especially that I couldn't add any details to make it even clearer and avoid abuses.
3. Even if I knew the names of their direct clients, I have non-disclosure agreements with other agencies and a direct client could approach me through another agency. Now which contract should I have to observe in this case? The Spying Clause with the first agency or the non-disclosure agreement with the second?
And this is not just theoretical resentment. It did happen that I translated for the Eastern European branch of a bank and then I received work from the branch's Western parent company through an unrelated Western agency. No "Spying Clause" was in force with any of them, but if I had tried to inform any of them in the spirit of excessive non-competition, I'm sure I would have been labeled not trustworthy in matters of confidentiality.

One of the contracts that were offered to me stipulated that if I suspected a potential job to be coming from their direct client, I first had to ask for their permission. No comment.

Generally, I've noticed that the elaborateness of a contract is inversely proportional to trust between the parties. The longer the contract, the less trust between the parties. The best agencies I've worked with had one-page agreements (with really good and concise phrasing, though).


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 19:54
English to Polish
+ ...
TOPIC STARTER
Thank you! Jun 21, 2013

Marie-Helene Dubois wrote:

http://www.proz.com/forum/french/251416-signer_ou_ne_pas_signer_un_contrat_cadre.html

I thought you might be interested in this thread Łukasz.


Thank you, Marie-Helene! I've got my grammar school French and paracetamol to help me out, so no worries.

Here, a translator has been asked to sign a framework agreement after several years of working with an agency. This agreement imposes a penalty of tens of thousands of euros if the translator fails to adequately protect his computer and the documents therein from being hacked/accessed by other individuals (which I don't think any antivirus software can 100% guarantee).


It probably comes down to a hacker 1) actually knowing about you, 2) actually caring, 3) having enough time. Some stuff's supposed to be unbreakable, but I wouldn't count on it.

There is also a clause which asks that the translator agree ex ante to any future amendments to the contract.

That's about as abusive as it gets right?


Not even that the outsourcer has the right to make unilateral changes, but that the translator agrees to them ex ante? Yeah, that's zombie-positive.


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