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What is it with indemnity clauses?
Thread poster: Gabriele Demuth

Gabriele Demuth  Identity Verified
United Kingdom
Local time: 11:45
Member (2014)
English to German
Jan 24, 2017

Recently I have come across 2 reasonably sized British agencies with indemnity clauses in their contracts. I do not think that it is reasonable, I think it is even abusive to ask a translator to accept unlimited liability for everyone and their dog.

Every company I have come across, including these two agencies have a clause in their terms to limit their liability to the invoice amount or similar - so why ask for and insist in translators accepting unlimited liability?

One agency came my way a little in offering that I only accept unlimited liability for defamation and violation against privacy issues and I don't expect to hear back from the other, but it is my impression that nobody in their right mind would or should accept to take responsibility everything and everybody that or who might possibly be at some kind of disadvantage as a result of any kind of error or circumstance - this would be madness.

This has been discussed here before, and most agreed that they wouldn't accept such clauses - but this must be accepted by translators, otherwise these agencies would long have removed the clause?

[Edited at 2017-01-24 10:49 GMT]


 

Samuel Murray  Identity Verified
Netherlands
Local time: 12:45
Member (2006)
English to Afrikaans
+ ...
Most sign without reading Jan 24, 2017

Gabriele Demuth wrote:
This must be accepted by translators, otherwise these agencies would long have removed the clause?


1. Most translators (most computer users, in fact) sign without reading.

2. ProZ.com will never remove the indemnification clause from its own terms and conditions, despite being a supposedly freelancer friendly site. And agencies do not adjust their processes according to the wishes of freelancers.


 

xxxIlan Rubin  Identity Verified
Russian Federation
Local time: 13:45
Russian to English
Abusive Jan 24, 2017

Indemnification clauses like this are abusive and I never agree to them. The most I would agree to is the amount of the particular job the client was unhappy about.
These days I just work with 3 direct clients as it's all I have time for. With 2 of them I don't have any contract at all and with the 3rd there is no indemnity clause.



[Edited at 2017-01-24 11:22 GMT]


 

Gabriele Demuth  Identity Verified
United Kingdom
Local time: 11:45
Member (2014)
English to German
TOPIC STARTER
Everyone seems to protect themselves though - except translators Jan 24, 2017

Every company, and I have looked recently, has a clause in their terms to exclude unlimited liability (I have in my terms and they are modelled on an ITI model contract for translators) - which is appropriate.

Then why ask translators to accepts exactly what they do not accept themselves? And it appears translators do...

[Edited at 2017-01-24 11:31 GMT]


 

Mirko Mainardi  Identity Verified
Italy
Local time: 12:45
Member
English to Italian
Good question... Jan 24, 2017

Gabriele Demuth wrote:

This has been discussed here before, and most agreed that they wouldn't accept such clauses - but this must be accepted by translators, otherwise these agencies would long have removed the clause?


I have refused to sign several NDAs/SLAs for this and similar reasons, asking the agency to either remove or change the offending clauses, but not once has the agency agreed to do that. Apparently for many of them it is simply unthinkable that a negotiation may actually involve some measure of, well... negotiation, since their concept of negotiation seems to be "We state our terms and you meekly accept them".

In my case, after asking those agencies to discuss/clarify/change their agreements (even the simplest of things, such as "When is this agreement supposed to expire, as it is not stated anywhere?"), they either just didn't answer, answered "without answering" (i.e. ignoring/dismissing my points and just asking me to sign) or replied to my concerns by saying something along the lines of "This is the standard agreement accepted by all of our vendors (so just shut up and sign it)".

In other words, their legal depts. devise these agreements (often unnecessarily long, tortuous, and totally biased in their favor), and they expect everyone else to just fall in line and sign them, no questions asked. So, again, as you were saying, they must be used to dealing with people just accepting everything.

I guess something similar applies to rates, BTW... Highly symptomatic of a buyer's market where agencies have too much power, especially because there's no unity (nor "union"...) among translators, IMO.


 

Michael Beijer  Identity Verified
United Kingdom
Local time: 11:45
Member (2009)
Dutch to English
+ ...
timely topic Jan 24, 2017

Gabriele Demuth wrote:

Recently I have come across 2 reasonably sized British agencies with indemnity clauses in their contracts. I do not think that it is reasonable, I think it is even abusive to ask a translator to accept unlimited liability for everyone and their dog.

Every company I have come across, including these two agencies have a clause in their terms to limit their liability to the invoice amount or similar - so why ask for and insist in translators accepting unlimited liability?

One agency came my way a little in offering that I only accept unlimited liability for defamation and violation against privacy issues and I don't expect to hear back from the other, but it is my impression that nobody in their right mind would or should accept to take responsibility everything and everybody that or who might possibly be at some kind of disadvantage as a result of any kind of error or circumstance - this would be madness.

This has been discussed here before, and most agreed that they wouldn't accept such clauses - but this must be accepted by translators, otherwise these agencies would long have removed the clause?

[Edited at 2017-01-24 10:49 GMT]


Interesting that you should post this, as I have been pondering it myself of late. I was just about to sign a contract (a so-called "Consulting Agreement") with a big agency a few days ago, when I decided to take the trouble to read through it, because someone warned in a paymentpractices.net (http://www.paymentpractices.net/ ) post that their indemnity clause is evil. Well, lo and behold: exactly as you mentioned: they want me to agree to this:

iigczquicdhynb5wu5z1.png

I'll copy/paste the text too:

"Liabilities and Indemnity.

This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the IC will be fully responsible for and will indemnify and keep indemnified the Company in respect of any income tax, value added tax and national insurance and social security and any other liability, loss, damage, cost, expense, deduction, contribution, assessment, penalty, fine or interest arising from or made in connection with any claim that, through the provision by the IC or any sub-contractors of the Translation Services, the IC and/or any of its employees or sub-contractors are employees of the Company."

Apart from the fact that it looks like the last bit is ungrammatical, it's way too much to be promising.

I am therefore currently drafting my own terms and conditions (which I will base on the ITI model). I will also be going through all of the old ones I already signed (yes, without reading them properly), and if they say something similar, will be contacting the client to tell them I can't agree to it. A clause limiting my liability to the invoice amount sounds pretty fair, but I still need to think about it a bit more, as this does sound kind of arbitrary.

Michael


 

Isa Harrington  Identity Verified
Spain
Local time: 12:45
Member (2011)
Spanish to English
+ ...
Liability for any direct or indirect damages to the end customer? (however unlikely) Jan 24, 2017

This is a timely topic as I am just in the process of reading through a contract I have been asked to sign for work with an agency, which includes this paragraph under the "Liability" heading- "In the event of a breach by the Subcontractor/Supplier of any of the obligations undertaken in this Framework Agreement or in the corresponding Purchase Order, the Subcontractor/Supplier shall
compensate XXXX for any direct or indirect damages caused by the breach, including any damages for
which, where applicable, the XXXX company may be liable to the End Customer."

However unlikely the event may be, I think it would be unwise to sign a contract with this clause, which places liability on the translator that goes far beyond liability for the full translation amount....However, these clauses seemed to be, as mentioned in previous posts, the norm...


 

Gabriele Demuth  Identity Verified
United Kingdom
Local time: 11:45
Member (2014)
English to German
TOPIC STARTER
PMs not really at fault Jan 24, 2017

Mirko Mainardi wrote:

In my case, after asking those agencies to discuss/clarify/change their agreements (even the simplest of things, such as "When is this agreement supposed to expire, as it is not stated anywhere?"), they either just didn't answer, answered "without answering" (i.e. ignoring/dismissing my points and just asking me to sign) or replied to my concerns by saying something along the lines of "This is the standard agreement accepted by all of our vendors (so just shut up and sign it)".



It is my impression that the PMs are trying to do their jobs, meaning recruit translators, and they just move on to the next, if one doesn't agree to sign their papers. But if many translators would question such terms then they would surely feed back to their legal department and management that their terms are problematic as translators won't sign... then they might change them.


 

Samuel Murray  Identity Verified
Netherlands
Local time: 12:45
Member (2006)
English to Afrikaans
+ ...
"I would never agree to them" Jan 24, 2017

ILAN RUBIN wrote:
Indemnification clauses like this are abusive and I never agree to them.


dx4bvjiw1rgchidiuccd.png


 

Gabriele Demuth  Identity Verified
United Kingdom
Local time: 11:45
Member (2014)
English to German
TOPIC STARTER
Oh!! Jan 24, 2017

I didn't notice that, as I don't consider Proz a client.

It just seems to be everywhere, is that why every business states that they are NOT accepting such liability?

But it would be interesting to hear why Proz feels that they need such a clause to start with?


[Edited at 2017-01-24 13:02 GMT]


 

Dan Lucas  Identity Verified
United Kingdom
Local time: 11:45
Member (2014)
Japanese to English
Our complicity Jan 24, 2017

Isa Harrington wrote:
However, these clauses seemed to be, as mentioned in previous posts, the norm...

Only if you sign them. Better to walk away.

Dan


 

Isa Harrington  Identity Verified
Spain
Local time: 12:45
Member (2011)
Spanish to English
+ ...
Avoid like the plague! Jan 24, 2017

Dan Lucas wrote:

Isa Harrington wrote:
However, these clauses seemed to be, as mentioned in previous posts, the norm...

Only if you sign them. Better to walk away.

Dan


I have refused to sign any contracts containing these types of clauses, though this one really takes the biscuit of all the ones I have seen so far, which really could land a translator in a very sticky situation...The reason why it is so important to read every contract thoroughly, even though, as pointed out by Samuel, Proz's terms and conditions themselves include this type of clause...


 

Andrea Halbritter  Identity Verified
France
Local time: 12:45
Member (2014)
French to German
+ ...
I refuse Jan 24, 2017

I refuse to sign such clauses.

 

Mirko Mainardi  Identity Verified
Italy
Local time: 12:45
Member
English to Italian
Difference Jan 24, 2017

Isa Harrington wrote:

I have refused to sign any contracts containing these types of clauses, though this one really takes the biscuit of all the ones I have seen so far, which really could land a translator in a very sticky situation...The reason why it is so important to read every contract thoroughly, even though, as pointed out by Samuel, Proz's terms and conditions themselves include this type of clause...


I see quite a big difference between the two cases, though...

With ProZ, we're paying to use the services offered by this platform, and we're responsible for the use we make of it. If I barged in here and started insulting everyone, making specific allegations, publishing copyrighted materials, etc. I wouldn't expect ProZ to be responsible in my stead for possible legal action arising out of any of the above, for instance...

With agencies, we're being paid to perform a service and we "surrender" our work and the rights to it to them. They pay for it, it's theirs. I find it reasonable to be held responsible for its quality (within a reasonable amount of time from delivery), but definitely not for everything and anything that may "go wrong" with it at some indefinite point in time and space after delivery...


 

Mirko Mainardi  Identity Verified
Italy
Local time: 12:45
Member
English to Italian
Fault Jan 24, 2017

Gabriele Demuth wrote:

Mirko Mainardi wrote:

In my case, after asking those agencies to discuss/clarify/change their agreements (even the simplest of things, such as "When is this agreement supposed to expire, as it is not stated anywhere?"), they either just didn't answer, answered "without answering" (i.e. ignoring/dismissing my points and just asking me to sign) or replied to my concerns by saying something along the lines of "This is the standard agreement accepted by all of our vendors (so just shut up and sign it)".



It is my impression that the PMs are trying to do their jobs, meaning recruit translators, and they just move on to the next, if one doesn't agree to sign their papers. But if many translators would question such terms then they would surely feed back to their legal department and management that their terms are problematic as translators won't sign... then they might change them.



While I do certainly agree with your reasoning about translators (as I wrote myself), PMs (and in many cases VMs when it comes to preliminary "negotiations") are "at fault" as much as the agency is, as they're acting as representatives for the agency. They ARE the agency, as far as you're concerned.

In other words, if someones tries to have you sign an agreement containing "unreasonable" or "unfair" terms, it is definitely your "fault" if you sign it anyway, but I also see (at the very least) a direct moral/ethical responsibility on the party trying to "enforce" the terms of such an agreement in order to pass all liability onto you, without considering that this also implicitly means they obviously don't see you as a party truly worthy of consideration and respect (the "just move on to the next" approach you mentioned yourself).


 
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