Pages in topic:   [1 2] >
Professional Services Agreement - your opinions please
Thread poster: Marion Plath

Marion Plath  Identity Verified
United Kingdom
Local time: 10:46
Member (2013)
English to German
+ ...
Oct 31, 2013

Dear fellow translators,

I received a Professional Service Agreement from an agency which is just starting out and wants to work with me. This agreement is a 6 page legal contract and some clauses seem excessive to me, putting all responsibility on the translator.

Here are some examples from this agreement, sorry for the legal lingo:

1. No terms or conditions endorsed upon, delivered with or contained in the Freelance Translator's quotation, acknowledgement or acceptance of order (...) shall form part of the Contract and the Freelance Translator waives any right which it otherwise might have to rely on such terms and conditions.
- so this basically means that all T&Cs the translator might have are not valid and overruled by the contract.

2. (...) The Agency shall reserve the right to contact reference providers and former employers of the Freelance Translator in order to obtain additional information.
- I understand "reference providers", but it looks like they want to contact any employer who is mentioned on the translator's CV. And what does "additional information" mean here?

3. The Freelance Translator shall have sole responsibility and liability for completed Assignments (...)
- this speaks for itself.

4. Remedies
(...) if the Services have not been supplied in accordance with, or the Freelance translator fails to comply with any of the terms of the Contract, the Agency shall be entitled to any or more of the following remedies at its discretion, whether or not any part of the Services have been accepted by the Agency:

to reject the service product (in whole or in part) arising from the Services and return them to the Freelance Translator on the basis that a full refund for the service product so returned shall be paid immediately by the Independent Freelance Translator.

to carry out at the Freelance Translator's expense any work necessary to make the service product comply with the Contract.

reduce the fees paid to the Freelance Translator for the work done by an amount equal to the reduction in fee the Agency has had to agree with the Customer due to the Freelance Translator's failure to comply with the terms of the Contract and /or to cover the additional administration fee for further work carried out by the Agency.

5. The Freelance Translator shall not at any time either during or folowing the termination of the Contract make any derogatory comment which may have the effect of harming the reputation and/or honour of the Agency.
- so criticism is never allowed, even if it is warranted.

In the last few years I worked as an in-house translator, and when working freelance with a few agencies before that, I never came across such a contract. I read some very good discussions about potentially harmful clauses on here and I am wondering what you make of this.

I completely understand the agency's concern and know that they need to protect their interests but clauses like these seem unnecessarily harsh and imbalanced. I would feel very uncomfortable signing this as it completely seems to waive my rights.

Have you come across contracts like this? Is this something to expect when working as a freelancer? I'm not sure if it is worth writing back to ask for amendements of certain clauses or if I should rather just not agree and lose a potential client. I spent a lot of time worrying about this contract already...

Thanks for your feedback!















[Edited at 2013-10-31 13:54 GMT]


Direct link Reply with quote
 

Jenny Forbes  Identity Verified
Local time: 10:46
Member (2006)
French to English
+ ...
NO!! Oct 31, 2013

Well, I wouldn't sign away all my rights in a contract like this, and I dislike its general tone. It might be worth trying to negotiate the terms - some clients do agree to negotiate - but if they won't, I'd drop the idea of working for them. It doesn't bode well, somehow.
There really are some decent agencies out there.
Best wishes,
Jenny


Direct link Reply with quote
 
Joakim Braun  Identity Verified
Sweden
Local time: 11:46
German to Swedish
+ ...
We have all the rights, you have none Oct 31, 2013

Perhaps they would like to charge you for the time it takes to read your quotation.

Direct link Reply with quote
 

John Fossey  Identity Verified
Canada
Local time: 05:46
Member (2008)
French to English
Cross it out Oct 31, 2013

As I just responded on another thread, just cross out what you don't like.

With regards to point 5, I have in the past added to such clauses something like, "with the exception of reporting non-payment issues to the appropriate payment experience boards". It would be pretty hard for an outsourcer to protest that and if they did, run, don't walk.

The tone isn't always significant - the contract is often written by lawyers who have absolutely no knowledge of the industry.


Direct link Reply with quote
 

Sheila Wilson  Identity Verified
Spain
Local time: 10:46
Member (2007)
English
+ ...
Used to replace careful selection of translators, perhaps? Oct 31, 2013

Of course, if they're just going to give work to the first person who says they know two languages, and will accept an abysmal rate, then they will have to have legal ways of covering themselves for the fiasco that results.

But a good agency will carefully select the right person for the job, will agree terms (not dictate), and will have no need to protect themselves against derogatory remarks or end-client complaints. The only contract that's needed (if any is needed - I'm rarely asked to sign them, personally) would stipulate that:
the translator needs to produce the correct translation, on time,
the agency needs to pay, on time,
things are to be kept confidential, and
the translator and client mustn't try to cut the agency out of the loop.

Is there anything missing?


Direct link Reply with quote
 

Marion Plath  Identity Verified
United Kingdom
Local time: 10:46
Member (2013)
English to German
+ ...
TOPIC STARTER
Not on equal terms Oct 31, 2013

Thanks, good to know (and I suspected this already) that this is not the norm. This agency seems to be inexperienced, so maybe they just want to make sure their business will be running smoothly, but what they do is dictating their terms, as "a framework to work under", so the manager of the company wrote me.

Sheila, I don't think this company would accept just anyone as translator, the level of qualifications they require is another part of the contract. They approached me, checked my qualifications and work experience and accepted my rates. It's just a shame I didn't know about this contract earlier, then I wouldn't have wasted my time with filling in their application form.

The tone of the contract is so imbalanced in favour of the agency that I wouldn't even know where to start with suggesting changes. So I think I'll have to politely refuse the whole thing. It's their loss...


Direct link Reply with quote
 

Samuel Murray  Identity Verified
Netherlands
Local time: 11:46
Member (2006)
English to Afrikaans
+ ...
My 2c Oct 31, 2013

Marion Plath wrote:
1. No terms or conditions endorsed upon, delivered with or contained in the Freelance Translator's quotation, acknowledgement or acceptance of order (...) shall form part of the Contract and the Freelance Translator waives any right which it otherwise might have to rely on such terms and conditions.


I think this means that if you quote on a job for them, and your quote contains some clause that contradicts this agreement, then this agreement supersedes that clause. Some translators add terms and conditions when they submit the invoice, and expect the client to accept this terms at that time, and others send their terms and conditions when they submit their quote, but this agency wants to be certain that this agreement that you sign here is the one that you'll follow.

2. (...) The Agency shall reserve the right to contact reference providers and former employers of the Freelance Translator in order to obtain additional information.


Don't they have that right anyway?

3. The Freelance Translator shall have sole responsibility and liability for completed Assignments (...)


How else would you have wanted it to be?

5. The Freelance Translator shall not at any time either during or folowing the termination of the Contract make any derogatory comment which may have the effect of harming the reputation and/or honour of the Agency.


I think it is unnecessary for them to ask this, but some translators don't seem to know that it is bad business to do that.


[Edited at 2013-10-31 18:54 GMT]


Direct link Reply with quote
 

John Fossey  Identity Verified
Canada
Local time: 05:46
Member (2008)
French to English
And my $0.02 Oct 31, 2013

Samuel Murray wrote:

Marion Plath wrote:
1. No terms or conditions endorsed upon, delivered with or contained in the Freelance Translator's quotation, acknowledgement or acceptance of order (...) shall form part of the Contract and the Freelance Translator waives any right which it otherwise might have to rely on such terms and conditions.


I think this means that if you quote on a job for them, and your quote contains some clause that contradicts this agreement, then this agreement supersedes that clause. Some translators add terms and conditions when they submit the invoice, and expect the client to accept this terms at that time, and others send their terms and conditions when they submit their quote, but this agency wants to be certain that this agreement that you sign here is the one that you'll follow.


And my own terms say: "you are deemed to have agreed that these are the only terms that apply, notwithstanding any other documents sent to me or visible on your website." so it would be interesting to know who wins!


5. The Freelance Translator shall not at any time either during or folowing the termination of the Contract make any derogatory comment which may have the effect of harming the reputation and/or honour of the Agency.


I think it is unnecessary for them to ask this, but some translators don't seem to know that it is bad business to do that.


I think this clause may be meant to stop translators from making records on the BB and similar. A non-payer's reputation and honour will definitely be harmed if the truth is reported.


Direct link Reply with quote
 

Samuel Murray  Identity Verified
Netherlands
Local time: 11:46
Member (2006)
English to Afrikaans
+ ...
@John Oct 31, 2013

John Fossey wrote:
Samuel Murray wrote:
I think this means that if you quote on a job for them, and your quote contains some clause that contradicts this agreement, then this agreement supersedes that clause.

And my own terms say: "you are deemed to have agreed that these are the only terms that apply, notwithstanding any other documents sent to me or visible on your website." So it would be interesting to know who wins!


I should think one that is signed by both parties is likely to win, if it ever goes before a judge.

5. The Freelance Translator shall not at any time either during or folowing the termination of the Contract make any derogatory comment which may have the effect of harming the reputation and/or honour of the Agency.

I think it is unnecessary for them to ask this, but some translators don't seem to know that it is bad business to do that.

I think this clause may be meant to stop translators from making records on the BB and similar. A non-payer's reputation and honour will definitely be harmed if the truth is reported. [/quote]

I think the wording here leaves enough clearance to permit a negative Blue Board entry. As long as your comment is not derogatory, you should be fine. The clause does not prohibit doing anything that eventually harms the agency's reputation -- just making derogatory comments that would harm the agency's reputation.


Direct link Reply with quote
 

Bernhard Sulzer  Identity Verified
United States
Local time: 05:46
English to German
+ ...
I am the provider, they are the "customer" Oct 31, 2013

Marion Plath wrote:
...

The tone of the contract is so imbalanced in favour of the agency that I wouldn't even know where to start with suggesting changes. So I think I'll have to politely refuse the whole thing. It's their loss...



Yes, refuse.

The only forms or contracts I sign these days are the ones I draw up and ask my clients to co-sign. I am the provider, they are the customer.
Bernhard


Direct link Reply with quote
 

Marion Plath  Identity Verified
United Kingdom
Local time: 10:46
Member (2013)
English to German
+ ...
TOPIC STARTER
A gag order for translators Oct 31, 2013

Samuel Murray wrote:

John Fossey wrote:
Samuel Murray wrote:
I think this means that if you quote on a job for them, and your quote contains some clause that contradicts this agreement, then this agreement supersedes that clause.

And my own terms say: "you are deemed to have agreed that these are the only terms that apply, notwithstanding any other documents sent to me or visible on your website." So it would be interesting to know who wins!


I should think one that is signed by both parties is likely to win, if it ever goes before a judge.


I find it very problematic to start a collaboration of two parties with discussions about legal issues, it seems unnecessarily confrontational to me. As it was said earlier in this post, there are certain T&Cs both parties should agree on, payment, confidentiality, responsibility to deliver an accurate translation etc. Common sense things. But what I don't like here is this "you, the translator, do as you are told by us, the agency" approach.

5. The Freelance Translator shall not at any time either during or folowing the termination of the Contract make any derogatory comment which may have the effect of harming the reputation and/or honour of the Agency.

I think it is unnecessary for them to ask this, but some translators don't seem to know that it is bad business to do that.

I think this clause may be meant to stop translators from making records on the BB and similar. A non-payer's reputation and honour will definitely be harmed if the truth is reported. [/quote]

I think the wording here leaves enough clearance to permit a negative Blue Board entry. As long as your comment is not derogatory, you should be fine. The clause does not prohibit doing anything that eventually harms the agency's reputation -- just making derogatory comments that would harm the agency's reputation. [/quote]

To me, the wording sounded like a gag order. Why should a translator criticize an agency without a good reason? The Blue Board is a necessary and useful tool for translators and if a translation agency doesn't pay or pays with a long delay, the translators should feel free to say this and be able to warn other translators.

[Edited at 2013-10-31 21:35 GMT]


Direct link Reply with quote
 

Bernhard Sulzer  Identity Verified
United States
Local time: 05:46
English to German
+ ...
Security is important Oct 31, 2013

Marion Plath wrote:

I find it very problematic to start a collaboration of two parties with discussions about legal issues, it seems unnecessarily confrontational to me. As it was said earlier in this post, there are certain T&Cs both parties should agree on, payment, confidentiality, responsibility to deliver an accurate translation etc. Common sense things. But what I don't like here is this "you, the translator, do as you are told by us, the agency" approach.


I agree with you about what is important and for my own and the client's security, I include these and other terms in my order forms (I don't really call them contracts). But I don't think there's anything wrong with having clients sign them - and I never had anyone I asked refuse to do it. In this global market, some form of contractual agreement is good to have.


Marion Plath wrote:
To me, the wording sounded like a gag order. Why should a translator criticize an agency without a good reason? The Blue Board is a necessary and useful tool for translators and if a translation agency doesn't pay or pays with a long delay, the translators should feel free to say this and be able to warn other translators.


I agree.

[Edited at 2013-10-31 22:12 GMT]


Direct link Reply with quote
 

Marion Plath  Identity Verified
United Kingdom
Local time: 10:46
Member (2013)
English to German
+ ...
TOPIC STARTER
Agreements Oct 31, 2013

Bernhard Sulzer wrote:

Marion Plath wrote:

I find it very problematic to start a collaboration of two parties with discussions about legal issues, it seems unnecessarily confrontational to me. As it was said earlier in this post, there are certain T&Cs both parties should agree on, payment, confidentiality, responsibility to deliver an accurate translation etc. Common sense things. But what I don't like here is this "you, the translator, do as you are told by us, the agency" approach.


I agree with you about what is important and for my own and the client's security, I include these and other terms in my order forms (I don't really call them contracts). But I don't think there's anything wrong with having clients sign them - and I never had anyone I asked refuse to do it. In this global market, some form of contractual agreement is good to have.


Thanks Bernhard. Yes, I also meant that these T&Cs should be signed by both parties. If they are reasonable, there won't be problems and no bad feelings like in the case I just had.


Direct link Reply with quote
 

Samuel Murray  Identity Verified
Netherlands
Local time: 11:46
Member (2006)
English to Afrikaans
+ ...
@Marion Oct 31, 2013

Marion Plath wrote:
Samuel Murray wrote:
John Fossey wrote:
Samuel Murray wrote:
I think this means that if you quote on a job for them, and your quote contains some clause that contradicts this agreement, then this agreement supersedes that clause.

And my own terms say: "you are deemed to have agreed that these are the only terms that apply, notwithstanding any other documents sent to me or visible on your website." So it would be interesting to know who wins!

I should think one that is signed by both parties is likely to win, if it ever goes before a judge.

What I don't like here is this "you, the translator, do as you are told by us, the agency" approach.


The clause in question does not mean "you, the translator, should do as you are told by us, the agency". What it means is "we, the translator and the agency, should do as we agree here".

You may say that you dislike it when certain legal issues are dealt with in agreements, but the fact is that some translators do not stick to the spirit of the agreement, and this forces the agency to include letters in the agreement that both parties should stick to.

I think it is unnecessary for them to ask this, but some translators don't seem to know that it is bad business to do that.

I think this clause may be meant to stop translators from making records on the BB and similar. A non-payer's reputation and honour will definitely be harmed if the truth is reported.

I think the wording here leaves enough clearance to permit a negative Blue Board entry. As long as your comment is not derogatory, you should be fine.

To me, the wording sounded like a gag order. Why should a translator criticize an agency without a good reason?


Why would the agency have this wording in their agreement? Perhaps they have had a negative experience in the past whereby translators who (by the nature of their dealings with the agency) were privy to internal affairs of the agency made derogatory statements about them in the press, on blogs, in forums, etc, which harmed their reputation.

I think you are very naive if you believe that all translators will only criticise the agency if they have "good reason" to do so. Not all translators are meek and mild. Some translators are vindictive and vengeful.

Note that this clause does not prohibit talking about the agency or reporting the agency to any arbitration system (such as the Blue Board). The clause says: "make any derogatory comment".


[Edited at 2013-10-31 23:15 GMT]


Direct link Reply with quote
 

Marion Plath  Identity Verified
United Kingdom
Local time: 10:46
Member (2013)
English to German
+ ...
TOPIC STARTER
@Samuel Nov 1, 2013

I don't want to repeat myself, so all I am going to say is this:

When I use the services of a service provider, i.e. to have work on my house done, do I give the service provider my own contract to sign? No. Would I give them a contract that basically says "my rules override your rules" and ask them to sign this? Certainly not.

When looking for a service provider, I check online resources to see reviews by previous customers, their qualifications, experience, and I compare them with a few other service providers. I have a look at their website to get an impression of them. I might speak with them on the phone or exchange emails to get a quote. Based on my information, I have to trust them to do their job right. I know it is in their interest to please the customer and provide a good job, not just because they probably take pride in their work, but also because they don't want to get out of business. They want to get jobs from me in the future and if they don't get something right, there should be a guarantee in place that they will fix it.

It is valuable to have a number of mutual and signed agreements between both parties, I completely agree, but there still needs to be a certain level of trust and goodwill on both sides.
I don't see why this should be different in the case of translators. Unless, of course, you think that translators are different to any other service providers and deserve to be treated with a higher level of distrust...

[Edited at 2013-11-01 09:05 GMT]


Direct link Reply with quote
 
Pages in topic:   [1 2] >


To report site rules violations or get help, contact a site moderator:


You can also contact site staff by submitting a support request »

Professional Services Agreement - your opinions please

Advanced search







SDL Trados Studio 2017 Freelance
The leading translation software used by over 250,000 translators.

SDL Trados Studio 2017 helps translators increase translation productivity whilst ensuring quality. Combining translation memory, terminology management and machine translation in one simple and easy-to-use environment.

More info »
memoQ translator pro
Kilgray's memoQ is the world's fastest developing integrated localization & translation environment rendering you more productive and efficient.

With our advanced file filters, unlimited language and advanced file support, memoQ translator pro has been designed for translators and reviewers who work on their own, with other translators or in team-based translation projects.

More info »



Forums
  • All of ProZ.com
  • Term search
  • Jobs
  • Forums
  • Multiple search