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Contract with Agency - would you sign this? Re: pay deduction
Thread poster: Tiffany Hardy

Tiffany Hardy  Identity Verified
Spain
Local time: 19:21
Spanish to English
Dec 9, 2013

I've been given an agreement to sign and am curious to know what others think of this:

"If the end customer is not satisfied with the work done, and therefore deduct a percentage of their payment, the same percentage will be deducted from the translators or proofreaders that have been involved with the project."

While I stand by my work 100% and in principle agree to this type of quality guarantee, I take issue with signing something so general. What if they disagree about wording choices that I firmly stand by? Also, it reads like no matter who performs the unsatisfactory work, everyone involved on the project will have their pay deducted.

I'd be grateful for your thoughts.


 

LEXpert  Identity Verified
United States
Local time: 12:21
Member (2008)
Croatian to English
+ ...
Thoughts... Dec 9, 2013

Tiffany Hardy wrote:
I'd be grateful for your thoughts.


My actual thoughts on this agreement would probably be unprintable in a professional forum.

Censored thoughts: So the company apparently does not do any negotiation with end clients (You're dissatisfied? No problem, we'll just stick it to the vendors), does not do any quality control (or these draconian provisions would be unnecessary) and passes on all risk of a dissatisfied end customer to not one but all vendors involved the project (which has to make for some perverse incentives among the vendors on a project - why should any of them care individually about their own work, when they know that any deduction, whether due to their own fault or a colleague's - will apparently be spread out among them?

You know that this agreement is an unsalvageable joke. Just walk away before you waste any more time contemplating it. Life's too short to deal with this short of nonsense.


[Edited at 2013-12-09 07:56 GMT]


 

Elina Sellgren  Identity Verified
Finland
Local time: 20:21
Member (2013)
Finnish to English
+ ...
I agree Dec 9, 2013

I feel like any such events should be handled on a case by case basis, precisely because the client may even be just trying to get a deduction while actually being satisfied with the quality (or unable to evaluate it in the first place), or they may not just recognize quality when they see it. The agency is trying to mitigate their business risk at the expense of the translators who, you could argue, bear the biggest risk in the whole chain.

And it makes me wonder why the agency has decided that they need this kind of agreement. Do they screen their translators at all? Do they have crappy processes that fail even if the translator is perfect? Or are they a doormat to their customers?


 

Shai Navé  Identity Verified
Israel
Local time: 20:21
Member
English to Hebrew
+ ...
No Dec 9, 2013

Part (some would even argue most) of the agency responsibility is to the make sure that the quality is on par with their standards, and deal with client over any claim of quality issue or unjustified complaint.
The blatant attempt of many brokers to have the cake and eat it too, i.e. roll all responsibility onto the translator is unethical and abusive, to say the least.

Even the best translator out there might make a mistake or simply have a bad day. In such case he or she will take responsibility to rectify the errors, up to waiving the invoice if circumstances justify it. However, it is the professional's decision, or at least the result of a respectful and professional factual discussion, and not the agency's or client's who clearly stand to gain financial benefit by arbitrary claiming unsatisfactory service, especially for a service that unlike an exact science always leave some room for debate, interpretation and personal stylistic choices.

I believe that some may recommend you to cross-out this (and any other unacceptable) section and return the agreement accompanied by an explanation of why this is unacceptable. However, I would advise not to sign this agreement and not work with this agency. If this is their initial tone of voice and approach, it is probably reflective of the nature of relationship to be expected, and it simply doesn't worth the hassle in my opinion.


 

Jennifer Forbes  Identity Verified
Local time: 18:21
Member (2006)
French to English
+ ...
I agree with Rudolf Dec 9, 2013

I wouldn't be happy about signing that agreement either. You have no relationship with the end client, dissatisfied or otherwise, and in many cases you don't even know who the end client is.
You might try deleting that particular clause and then signing the agreement, or negotiating with the agency about it but, overall, if that's their attitude before you've even started any relationship with them, I doubt it's worth pursuing.
Best wishes,
Jenny


 

Caroline Lakey  Identity Verified
France
Local time: 19:21
French to English
Talk to the agency Dec 9, 2013

May I recommend you talk to the agency about this? Tell them why you're not happy with the clause (from the "quality is to an extent subjective" angle rather than the "this is your responsibility, agency!" angle obviouslyicon_smile.gif) and ask if they will change it. You may be surprised to find that they're happy to adapt or remove the clause - it does happen! If not, as other people have said, I would definitely walk away.

 

Joakim Braun  Identity Verified
Sweden
Local time: 19:21
German to Swedish
+ ...
Forget it Dec 9, 2013

So now you're on the hook for other translators' work?
They can't even be bothered to figure out who did what?
That's a good one!

Do you really want to enter into a discussion with someone who proposes a term like that?


 

Joakim Braun  Identity Verified
Sweden
Local time: 19:21
German to Swedish
+ ...
Like Shai says Dec 9, 2013

Shai Nave wrote:

If this is their initial tone of voice and approach, it is probably reflective of the nature of relationship to be expected, and it simply doesn't worth the hassle in my opinion.


Exactly.


 

Yasutomo Kanazawa  Identity Verified
Local time: 02:21
English to Japanese
+ ...
Me neither Dec 9, 2013

Jenny Forbes wrote:

I wouldn't be happy about signing that agreement either. You have no relationship with the end client, dissatisfied or otherwise, and in many cases you don't even know who the end client is.
You might try deleting that particular clause and then signing the agreement, or negotiating with the agency about it but, overall, if that's their attitude before you've even started any relationship with them, I doubt it's worth pursuing.
Best wishes,
Jenny


And I wouldn't sign this contract even if deleting the section in question, since I can imagine this agency's attitude towards freelancers by inserting this unreasonable terms and conditions in the first place. We may be desperate, but are we that desperate (at least I'm not)?


 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 19:21
English to Polish
+ ...
Definitely one-sided Dec 9, 2013

Tiffany Hardy wrote:

I've been given an agreement to sign and am curious to know what others think of this:

"If the end customer is not satisfied with the work done, and therefore deduct a percentage of their payment, the same percentage will be deducted from the translators or proofreaders that have been involved with the project."

While I stand by my work 100% and in principle agree to this type of quality guarantee, I take issue with signing something so general. What if they disagree about wording choices that I firmly stand by? Also, it reads like no matter who performs the unsatisfactory work, everyone involved on the project will have their pay deducted.

I'd be grateful for your thoughts.



I appreciate the fact it was a percentage and not full amount, e.g. the agency does not deduct from your payment the whole extent of its lost commission. (Which it might even be entitled to in some cases under default law.)

On the other hand, deductions based on the whim of one party – the one which is the most interested in receiving a deduction at that while at the same time normally the least qualified to assess it – totally wreck the balance of a contractual relationship.

Next, I wish to say that the translation 'industry' is, unfortunately, becoming a pleasure industry. It does not happen in legal, medical or other profession that satisfaction is sold rather than the actual service or goods.

Perhaps use a compromise, e.g.:

If the end customer is not satisfied with the work done, and therefore deducts a percentage of their payment, the same percentage will be deducted from the translators or proofreaders that have been involved with the project, but only to the extent such a lack of satisfaction and the resulting deduction are justified.

You could even add something like:

Deductions which are not justified by any legitimate fault of the translation but are granted for business reasons (e.g. to please a difficult customer, to avoid losing one), or which are granted in error, are the sole responsibility of the Agency and cannot be passed down to the translator.

Don't get too incensed, though. It's possible that the Agency simply forgot that its client can be wrong and its PMs can be too soft. When drafting a mutual contract, the drafting party still looks from the perspective of a party, which means that while it might possibly agree to some clauses protecting the rights of the other it does not actively come up with such clauses.

[Edited at 2013-12-09 10:48 GMT]


 

xxxnrichy
France
Local time: 19:21
French to Dutch
+ ...
No Dec 9, 2013

Tiffany Hardy wrote:

"If the end customer is not satisfied with the work done, and therefore deduct a percentage of their payment, the same percentage will be deducted from the translators or proofreaders that have been involved with the project."


I once agreed to such provisions (which were on the purchase order) saying to myself that the agency had a very good reputation among clients and translators, and that this never would happen, especially because I worked for them from time to time since 6 months, but yes it happened, although the translations involved were for 100% in my comfort zone and specialization in which I have 25 years of experience: they cancelled my purchase order, just because "client was not happy" (in fact, very angry). And without PO invoicing would not be possible. In the meantime the PMs were trainees, they had working a Flemish and a Dutch person on the same project although I warned them, they asked for a terminology list at the end of the project although I already communicated this at the beginning of the project just to ensure coherence in translations, they had me have a phone meeting with the client without taking their own responsibility ("please arrange that"), and they lost the (very promising) client altogether, even in the other languages.


 

Václav Pinkava  Identity Verified
Czech Republic
Local time: 19:21
Member (2013)
Czech to English
+ ...
unreasonable Dec 9, 2013

An agency makes a margin on several grounds - securing clients/projects, managing each project, and taking responsibility for delivery on time, to quality and of course within budget. From a client's point of view, the agency's ability to deliver and their taking responsibility for delivery is what the client is primarily paying for. From a freelancer's, the added value of an agency is not having to find the work, or negotiate prices and timescales, and, last but not least, to get paid, as agreed, even if the client is tardy or awkward. Only an agency which acts as a facilitator and a buffer and adds value to the process deserves its margin.

This kind of clause makes no sense, being an abrogation of the agency's responsibility. It turns the agency into little more than the collective sales-function of mostly unrelated linguists. A dubious business model, at best.

If I were a prospective client, and I found out about such a clause in the agency's translator contracts, I would go to another agency.

[Edited at 2013-12-09 12:47 GMT]

[Edited at 2013-12-09 23:03 GMT]


 

Natalia Mackevich  Identity Verified
United Kingdom
Local time: 18:21
Member (2009)
English to Russian
+ ...
Any terms should be negotiable. Dec 9, 2013

If you are not happy with one or several parts of their agreement (and if you don't have your own contract... well, most freelancers prefer the easier way), you can either inform them that you won't proceed with this application (the short way) or negotiate the terms to make them beneficial to both parties (the longer way that sometimes leads to the above mentioned "short way"). I have recently signed an agreement after a certain part of the text was removed, so now I know what to expect from the agency.

 

Christine Andersen  Identity Verified
Denmark
Local time: 19:21
Member (2003)
Danish to English
+ ...
Who says the translator is wrong? Dec 9, 2013

I worked for a few years in-house at the start of my career, and this was an eye-opener.

Complaints from end clients were always discussed first with the translators and proofreaders concerned, and a senior colleague was in charge of dealing with complaints about English.

I don't remember the percentages, but there were queries about a very small proportion of the translations, and he turned the great majority of these around in the company's - or translator's - favour.

He talked to the client - and of course admitted it, if there really had been a mistake, and smoothed it over if at all possible. Diplomacy is a great gift!

However, it often turned out that the translator had found a legal or technical term that the client did not expect, even though they were good at English and knew a lot about their own affairs... When it was explained, they were impressed, and delighted to work with such experts!

If - and only if - the agency has someone like that to deal with enquiries should you even consider accepting client complaints. But as others have said, you have no dealings with the end client. Nobody is infallible, and it is the agency's responsibility to run a quality check.

I would not sign a general clause like that either.


 

Tiffany Hardy  Identity Verified
Spain
Local time: 19:21
Spanish to English
TOPIC STARTER
Thank you Dec 9, 2013

Thank you all for your thoughts on this topic that very much coincide with my own thinking.

After weighing the fact that this agency has an excellent Blue Board rating and the rates negotiated were fair, I decided to ask them to remove the clause and I would agree to work with them. I explained that I would be willing to discuss any issues that might come up regarding my work, make any corrections needed, and even make an appropriate deduction, but that it would be at my discretion, considering the nature of translation work and how open it can be to interpretation. I told them that I did not agree to leaving pay deductions to the discretion of an end client who may or may not have the expertise to evaluate my work and in whose best interest it is to claim they are dissatisfied.

The response from the agency was that the clause was there to protect the agency, but that in reality they have a very low number of complaints and that they have freelancers that have worked with them for years without ever having any deductions, and that I should not worry about it at all.

My response was that I was unable to sign the agreement because I disagree with it in principle, however unlikely the event that the clause would actually be applied.

Thank you all for confirming what my gut was already telling me.


 
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