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Liability - Should I sign this?
Thread poster: Christina Baier
Christina Baier  Identity Verified
Sweden
Local time: 08:33
Member (2014)
French to German
+ ...
May 14, 2015

Hi everybody,

an agency wants me to sign a translators agreement, in the text it says that I shall be liable "for any losses arising resulting from a breach of warranty, including indirect special or consequential losses and loss of profit."


Should I sign this?

Thanks for your advice!


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Bernhard Sulzer  Identity Verified
United States
Local time: 02:33
English to German
+ ...
My recommendation May 14, 2015

Christina Baier wrote:

Hi everybody,

an agency wants me to sign a translators agreement, in the text it says that I shall be liable "for any losses arising resulting from a breach of warranty, including indirect special or consequential losses and loss of profit."


Should I sign this?

Thanks for your advice!


No. If I sign anything with regard to my translation service, it's forms I have put together myself and then I have the client co-sign them. If the client has concerns about quality or confidentiality, I will make suggestions on how to integrate them into a contract /order form of mine. If they can't agree, then they'll have to find someone else. In this business, it has become increasingly important to protect yourself against fraudulent agencies. And that can't happen "on their terms."


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xxxbrg
Netherlands
No May 14, 2015

Too dangerous.

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Tom in London
United Kingdom
Local time: 07:33
Member (2008)
Italian to English
No. May 14, 2015

No. Why are you even asking? !!!

[Edited at 2015-05-14 13:47 GMT]


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Vladimir Pochinov  Identity Verified
Russian Federation
Local time: 08:33
Member (2002)
English to Russian
Liability limit May 14, 2015

I would not sign any contract with such language. The contracts I do sign generally limit my liability to the amount payable or paid for my services.

By way of example, have a look at this document: http://www.poolepl.com/img/~www.poolepl.com/8367july03.pdf

Also, you can just google for "limitation of liability clause".


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Obi Udeariry  Identity Verified
Nigeria
Local time: 07:33
Member (2011)
French to English
+ ...
Never May 14, 2015

Never.

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Thomas T. Frost  Identity Verified
Germany
Local time: 08:33
Member (2014)
French to Danish
+ ...
Contract or not, you may still be held liable May 14, 2015

Under civil and other laws and codes in many, if not most jurisdictions, they could hold you liable for breach of contract regardless of what is written in the contract, so they shouldn't even need to stipulate these things.

What I look out for are terms that go beyond simply stipulating such a general liability but try to pre-determine damages, as that should be up to the competent courts.

For the general amusement, here are parts of a contract I recently turned down; probably the most outrageous I've ever seen. Note to Moderator: "AcmeBlah" is a fictional name. The wording has been slightly altered.


3. Contractor agrees that any violation or threatened violation of this Contract will
cause irreparable injury to the Company, entitling Company to obtain injunctive relief in addition to all legal remedies.


It must be for the courts to decide what sort of 'injury', and how much, has been caused.


5. Contractor undertakes not to denigrate the services and the activity of AcmeBlah Ltd. with third
parties and specifically with our Clients.


Freedom of speech curtailed. They could reasonably ban defamation, but this goes too far. If I told a colleague about an unfavourable opinion about them, they could sue.


7. Recipient also agrees that they will not provide pricing directly to any Client, potential
Client, that have been introduced to Contractor by AcmeBlah Ltd. and its subsidiaries, and to
third parties (ie: other translators, reviewers, agencies, etc.).



The first part is okay, although "provide pricing" is a strange wording. But according to a literal interpretation of this, I would be banned from working with anyone else.


The infringement of the provisions set forth in Clauses 5 and 7 herein, shall authorize AcmeBlah
Ltd. to demand the payment of a penalty equal to Euro 30.000,00 in addition to compensation of any
greater damages from Recipient.


What a joke. They must be crazy. Their reply to my polite comments: "this is standard NDA". Wow. They're beyond hope.


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Tom in London
United Kingdom
Local time: 07:33
Member (2008)
Italian to English
Let me guess.... May 14, 2015

Is this an American agency?



[Edited at 2015-05-14 14:22 GMT]


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Thomas T. Frost  Identity Verified
Germany
Local time: 08:33
Member (2014)
French to Danish
+ ...
No, European May 14, 2015

No, they're based in Western Europe and operate in a handful of European countries and the US. Maybe their American colleagues took care of this garbage, to state it in their version of English. You could be right about that.

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Sheila Wilson  Identity Verified
Spain
Local time: 07:33
Member (2007)
English
+ ...
Still not for me to sign May 14, 2015

Thomas T. Frost wrote:
7. Recipient also agrees that they will not provide pricing directly to any Client, potential
Client, that have been introduced to Contractor by AcmeBlah Ltd. and its subsidiaries, and to
third parties (ie: other translators, reviewers, agencies, etc.).



The first part is okay, although "provide pricing" is a strange wording. But according to a literal interpretation of this, I would be banned from working with anyone else.

I don't like the first part either. Do we always know who is a subsidiary of an agency client? Do we always know who the end client is that they've "introduced" us to? The answer in both cases is definitely "No". So it has to be "that they have knowingly been introduced to", or similar. I guess with "pricing" they don't want their clients to know that they're paying their translators about a tenth of what the client pays them. In their shoes, I wouldn't want that divulged either.

@ Christina:
They say "any losses arising resulting from a breach of warranty, including indirect special or consequential losses and loss of profit." Do they say exactly what this "warranty" is? Is that a separate document or are you supposed to guess? Just wondering - I wouldn't sign it anyway.

[Edited at 2015-05-14 14:54 GMT]


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Thomas T. Frost  Identity Verified
Germany
Local time: 08:33
Member (2014)
French to Danish
+ ...
Indeed May 14, 2015

Sheila Wilson wrote:

7. Recipient also agrees that they will not provide pricing directly to any Client, potential
Client, that have been introduced to Contractor by AcmeBlah Ltd. and its subsidiaries, and to
third parties (ie: other translators, reviewers, agencies, etc.).



I don't like the first part either. Do we always know who is a subsidiary of an agency client? Do we always know who the end client is that they've "introduced" us to? The answer in both cases is definitely "No".


Indeed. Although I think it wouldn't stand up in court if they attacked someone for working directly for a client of theirs if the translator had not been informed it was a client of theirs and had no way of knowing. If the agency otherwise behaved reasonably (one quickly finds out), I might compromise on a technical point like that.

However, something else is missing: there is no time limit for that clause, so it bans the translator from working directly for such clients as long as he or she lives, or when a statute of limitation takes effect, whatever comes first. A reasonable agency would limit the effect of that clause.


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Christina Baier  Identity Verified
Sweden
Local time: 08:33
Member (2014)
French to German
+ ...
TOPIC STARTER
Thanks May 14, 2015

to all of you for your advice.

@Vladimir, this link about liability limitation is very usefull, thank you!


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DZiW
Ukraine
English to Russian
+ ...
take it or leave it May 14, 2015

I don't know why so many deemed professionals are that--lets' call it--naive.
A contract is a mutual agreement where the parties are FREE to add/delete/change its terms/conditions.

Of course, after each amendment the other party is to accept, decline or specify the term, which brings the parties to the mutual benevolence: a win-win deal. Or NOT (so be ready to walk away).


THE RULE OF THUMB: NEVER EVER sign ANYTHING that DOESN'T BRING YOU SOME BENEFITS, LET ALONE DRAWBACKS and PROBLEMS!


Just delete the articles, lines, and phrases you don't consider relevant or useful, add what you would like to get, specify some possible ambiguities (hard numbers and limits!), and send it for the other party's approval, so they could see what you need and may sign.

Speak up: Negotiation is the key)

Good luck.

[Edited at 2015-05-14 15:53 GMT]


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xxxbrg
Netherlands
Such contracts May 14, 2015

Thomas T. Frost wrote:

However, something else is missing: there is no time limit for that clause, so it bans the translator from working directly for such clients as long as he or she lives, or when a statute of limitation takes effect, whatever comes first. A reasonable agency would limit the effect of that clause.


Such contracts must always be limited in time. It's not only reasonable, it is a requirement (often: 1 year). If not, then it is of no value in court.

As for this

7. Recipient also agrees that they will not provide pricing directly to any Client, potential Client, that have been introduced to Contractor by AcmeBlah Ltd. and its subsidiaries, and to third parties (ie: other translators, reviewers, agencies, etc.).


they want to say that the contractor should not provide information about pricing to other translators working on the same project, or for them.
This is to avoid claims ('he has € xx so I want € xx too')
But it is particularly awkward, and as such it even means that the contractor doesn't have the right to work for other parties.


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Preston Decker  Identity Verified
United States
Local time: 02:33
Member (2013)
Chinese to English
Where do these clauses come from? May 14, 2015

I've always wondered if agencies get a break on their insurance payments if they include clauses like this one in their agreements that transfer liability/responsibility to someone else. Would be interested to hear from someone in the know if this is the case?

[Edited at 2015-05-14 17:17 GMT]


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