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Agency T&C - would you accept this clause?
Thread poster: Nathalie Coutelle

Nathalie Coutelle  Identity Verified
Spain
Local time: 02:05
Member
English to French
+ ...
Oct 17, 2016

Hi all,

I have been working happily for many years with a translation agency that is now asking all his translators to sign a Translation Service Agreement.

I do not have professional insurance.
Would you accept the following clause ?

Clause 8.2 : The Translator shall defend, hold harmless and fully indemnify XXX against any loss
(including loss of or damage to XXX property and the property of the XXX’s officers,
employees or agents), claims, costs, liabilities, damages and expenses, whether direct,
indirect, economic, financial, consequential or otherwise, suffered or incurred by XXX or
any XXXX clients arising from any wilful default, negligent, wrongful or dishonest (including
fraudulent) act or omission by the Translator or any breach by the Translator of any of the
provisions of this Agreement.



Please share your thoughts

Thanks:)










[Edited at 2016-10-18 08:22 GMT]


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Chris S  Identity Verified
United Kingdom
Member (2011)
Swedish to English
+ ...
Yes Oct 17, 2016

I don't think it's unreasonable. I would expect that kind of liability even if I hadn't signed an agreement setting it out.

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wotswot  Identity Verified
France
Local time: 02:05
Member (2011)
French to English
Me too Oct 17, 2016

I have signed such clauses with certain agencies in France, but I also get them to sign MY T&Cs (which among other things specify that I don't do any medical translation)

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Kay-Viktor Stegemann
Germany
Local time: 02:05
Member (2016)
English to German
Limit it to the value of the order Oct 17, 2016

If you sign such a clause, the limit of your liability should be the value of the respective order. This should be added to the clause. (I took this suggestion from other threads here and I have already successfully negotiated this amendment with one or two agencies.)

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Preston Decker  Identity Verified
United States
Local time: 20:05
Member (2013)
Chinese to English
Not without insurance Oct 17, 2016

Nathalie Coutelle wrote:


Hi all,

I have been working happily for many years with a translation agency that is now asking all his translators to sign a Translation Service Agreement.

I do not have professional insurance.
Would you accept the following clause ?

The Translator shall defend, hold harmless and fully indemnify XXX against any loss
(including loss of or damage to XXX property and the property of the XXX’s officers,
employees or agents), claims, costs, liabilities, damages and expenses, whether direct,
indirect, economic, financial, consequential or otherwise, suffered or incurred by XXX or
any XXXX clients arising from any wilful default, negligent, wrongful or dishonest (including
fraudulent) act or omission by the Translator or any breach by the Translator of any of the
provisions of this Agreement.



Please share your thoughts

Thanks:)

Nathalie



First, read the entire contract over very carefully, as "or any breach by the Translator of any of the provisions of this Agreement" seems particularly onerous, and essentially makes you liable for everything covered by the contract.

Do you have professional liability insurance (errors and omissions)? If yes, then consult the terms of the insurance, and if covered for the things you're indemnifying them for, I'd say you're good to go.

On the other hand, if you don't have insurance and if a thorough reading of the contract shows that this last clause is a cleverly worded device to make you liable for ANY MISTAKE (not just those wilfully committed) you may make, I would not sign this.


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Yasutomo Kanazawa  Identity Verified
Local time: 09:05
Member (2005)
English to Japanese
+ ...
Yes I would Oct 17, 2016

Similar clauses can be seen in many agencies' T&C. It's nothing new, and sounds reasonable.

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Dan Lucas  Identity Verified
United Kingdom
Local time: 01:05
Member (2014)
Japanese to English
Consider the implications before deciding Oct 17, 2016

Nathalie Coutelle wrote:
Would you accept the following clause ?

I agree with the others that such clauses are not uncommon, but effectively you're taking on unlimited liability. The only thing that protects you is the part reading "...arising from any wilful default, negligent, wrongful or dishonest (including fraudulent) act or omission by the Translator". The agency will no doubt say "Well, as long as you do nothing wrong, you'll be fine".

Remember, you cannot say in advance with any certainty how the agency will behave if push comes to shove.

Even assuming that you would not do anything wrongful, dishonest or fraudulent, a lot hinges on the definition of the word 'negligent'. What happens if you make one mistake, which costs the end client 50,000 euro, and the end client seeks redress from the agency?

Everybody makes mistakes, but in such a situation, the kind of agency that uses agreements like this may try to claim that the mistake constituted negligence on your part. All it has to do is argue that you didn't take due care.

What happens then? You find yourself receiving frightening letters from the agency's lawyers - or from the lawyers of their insurers, who may have to pay out to the end client. Four months later you've been coerced into an out-of-court solution for 11,700 euro, even though you don't believe you did anything wrong.

You and others reading this can say "Aaah, whatever, not gonna happen". I'm pretty sure that most people who end up on the receiving end of legal action (a) didn't expect that to happen and (b) didn't expect to lose. Accepting unlimited liability is a bit like driving without your seatbelt on. You do it precisely because you don't expect to be in a car crash, and you certainly don't expect to be hurled from the vehicle and maimed. Nevertheless, it happens.

Bad things do happen to good people, and a liability case only has to happen once to blow up your savings or bankrupt you. Or it may not be that bad. You may have a dispute with the agency and end up paying it nothing. Still, do you want an affair like that hanging over your head for months while you wrangle with the agency until they finally give up?

If you're certain that you would never make a mistake, then sign. But be really certain. Me, I'm never that certain about anything, so I would probably offer to indemnify them to the value of my liability insurance. Otherwise I wouldn't sign.

What is comes down to is how well you want to sleep at night. If you need the money, maybe you sign regardless. If you don't like the contract, you walk away - and sleep well.

Dan

PS The agency may have T&Cs for THEIR clients on their website. If so, take a look and see whether the agency accepts any liability for translation mistakes toward their clients. If the agency doesn't accept liability, why should you accept liability?


[Edited at 2016-10-17 17:45 GMT]


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Preston Decker  Identity Verified
United States
Local time: 20:05
Member (2013)
Chinese to English
Why? Oct 17, 2016

Chris S wrote:

I don't think it's unreasonable. I would expect that kind of liability even if I hadn't signed an agreement setting it out.


Sorry Chris, but I think it's impossible to say whether or not this is reasonable without more information. As I wrote above, the agency (and more and more seem to be doing this) may be shifting responsibility for any mistake in the translation entirely onto the translator. I've seen these sort of clauses before--they are often nothing more than cleverly written, diabolical bits of legalese aimed to lull the translator into a false sense of security. "Arising from any wilful default, negligent, wrongful or dishonest (including
fraudulent) act or omission by the Translator" sounds reassuring, and is intentionally placed first to make the translator say "Well I would never purposefully make a mistake, so I'm OK", but is in fact meant to distract from the real meat of this: "or any breach by the Translator of any of the
provisions of this Agreement" . Many contracts of this sort will have a provision somewhere stating that "Translator is to deliver all Products error-free", and if so, the OP would actually be indemnifying the agency against all errors, which is very unreasonable.

So we'll have to wait to hear from the OP what the rest of the contract provides before figuring out how reasonable this is.

Edit: And after reading Dan's post above, I agree that 'negligent' is a dangerous word here (as is 'wrongful').

[Edited at 2016-10-17 16:02 GMT]

[Edited at 2016-10-17 16:04 GMT]

[Edited at 2016-10-17 16:12 GMT]


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Gabriele Demuth  Identity Verified
United Kingdom
Local time: 01:05
Member (2014)
English to German
Never! Oct 17, 2016

I have rejected such a clause with a couple of agencies, as I feel I could be signing my life away, if the worst came to the worst.

They tried to belittle it and ensured me that in practice I wouldn't really be liable for any more than the invoice - but this isn't what they asked me to sign... so I didn't.


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Sheila Wilson  Identity Verified
Spain
Local time: 01:05
Member (2007)
English
+ ...
I wouldn't sign away my house, my car, my life savings Oct 17, 2016

Dan Lucas wrote:
If you're certain that you would never make a mistake, then sign. But be really certain. Me, I'm never that certain about anything, so I would probably offer to indemnify them to the value of my liability insurance. Otherwise I wouldn't sign.

Even then, are you sure the liability insurance would cover you? I had one for years when I lived in France. It wasn't until I left and started looking for a package here in Spain that I finally realised that I'd only ever been covered for clients based in France. But I send invoices to around 20 countries a year so that was just wasted money - and a false sense of security!

PS The agency may have T&Cs for THEIR clients on their website. If so, take a look and see whether the agency accepts any liability for translation mistakes toward their clients. If the agency doesn't accept liability, why should you accept liability?

So true. Far too many agencies expect us to take the brunt of everything while they just act as a postal sorting office. They should be proofreading our work anyway.

From the original post:
incurred by XXX or any XXXX clients

So we're supposed to pay for insurance to cover what should be our own clients' liabilities? Come off it! If the end client has a problem, let them sue the agency! If the agency then has legitimate grounds to pass on that loss, we'd have to discuss it. But it would be a totally separate claim, with no input from the end client.


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Chris S  Identity Verified
United Kingdom
Member (2011)
Swedish to English
+ ...
Naively cynical Oct 17, 2016

Surely negligent/wrongful/dishonest is more to do with sharing privileged information with unauthorised parties? To me that doesn't cover translation errors, which are both accidental and inevitable.

That said, I'd expect to be sued if one of my translations put someone in a wheelchair, whether I've signed an agreement or not. I don't see why the agency, if there is one, should take the blame. That's what insurance is for. Although they'd probably wriggle out of it too.


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Linda Li
United States
Local time: 19:05
Member (2013)
English to Chinese
Would not sign Oct 17, 2016

A couple of months ago, I encountered the same situation and refused to sign the contract even though they seemed a good client to work with. Not only can I not imagine putting myself in such a risky situation, but also believe it is quite unfair. Translation agencies such as this get at least the same amount of money as translators from each single project, so why are translators supposed to take the full responsibility for liability? Some translation agencies lack expertise, try to reduce their budgets, and literally eliminate the proofreading and editing processes and expect you to deliver a perfect end to end translation.

Much of the industry is demeaning enough without signing away your financial future with a clause like this.


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Preston Decker  Identity Verified
United States
Local time: 20:05
Member (2013)
Chinese to English
Confused Oct 17, 2016

Chris S wrote:

Surely negligent/wrongful/dishonest is more to do with sharing privileged information with unauthorised parties? To me that doesn't cover translation errors, which are both accidental and inevitable.

That said, I'd expect to be sued if one of my translations put someone in a wheelchair, whether I've signed an agreement or not. I don't see why the agency, if there is one, should take the blame. That's what insurance is for. Although they'd probably wriggle out of it too.


Chris, these are translation agencies we're talking about. They advertise their expertise in translation to their customers and take somewhere between 50 and 70% of payment for each project, so I'm a bit baffled as to why you don't think the agency should hold any blame?

Interestingly enough, I've found that good translation agencies (by which I mean translation agencies that have strong editing and proofreading systems in place) usually do not include these sorts of clauses in their master agreements; it's the big box agencies without good review systems that usually throw these in.

[Edited at 2016-10-17 17:02 GMT]


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Chris S  Identity Verified
United Kingdom
Member (2011)
Swedish to English
+ ...
Decent Oct 17, 2016

Preston Decker wrote:

Chris, these are translation agencies we're talking about. They advertise their expertise in translation to their customers and take somewhere between 50 and 70% of payment for each project, so I'm a bit baffled as to why you don't think the agency should hold any blame?

Interestingly enough, I've found that good translation agencies (by which I mean translation agencies that have strong editing and proofreading systems in place) usually do not include these sorts of clauses in their master agreements; it's the big box agencies without good review systems that usually throw these in.

[Edited at 2016-10-17 17:02 GMT]


Because the buck stops with me? Client sues agency, agency sues me. Not all agencies check my work. They're just marketing people. But as I say, I don't think this clause covers translation errors anyway.

As you say, the best agencies don't have anything more than a gentleman's agreement. Sadly they sometimes get taken over by the big boys, a couple of whom I still work for from time to time. God knows what I've signed and how it might be applied if push comes to shove. I console myself with the knowledge that 90 percent of their other translators are appalling, so clearly their end-customers aren't too fussy. Plus we're not in the US.

And luckily my translations are unlikely to kill anyone anyway.


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 02:05
Member (2005)
English to Spanish
+ ...
Limit to the value of the order Oct 17, 2016

I would (and have several times in the past) ask for an amendment whereby any liability on your part would be limited to the value of the order or, if you are very generous indeed, twice the value or the order.

We are only one link in the end customer's production chain, and should not bear the whole liability if something really bad happens.


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