Contract_Is this quite standard?
Thread poster: Sanghyo Lee

Sanghyo Lee  Identity Verified
South Korea
Local time: 04:05
Member (Mar 2017)
English to Korean
+ ...
Mar 10

Hello, folks!

Below is an excerpt from a contract suggested by an agency. I haven’t been a freelance for long and I am wondering whether it is quite standard. To me it seems that they don't do any proofreading or quality management when I provide translation service not proofreading. So it's all translator's responsibility but copyright of the work goes to the agency.

“The Contractor must ensure to completely proof-read any written documentation commissioned before delivery to xxxx Translations. The Contractor will also take full responsibility for the quality of his/her work, including liability over work produced.”


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Tom in London
United Kingdom
Local time: 20:05
Member (2008)
Italian to English
I would be suspicious Mar 10

Sanghyo Lee wrote:

Hello, folks!

Below is an excerpt from a contract suggested by an agency. I haven’t been a freelance for long and I am wondering whether it is quite standard. To me it seems that they don't do any proofreading or quality management when I provide translation service not proofreading. So it's all translator's responsibility but copyright of the work goes to the agency.

“The Contractor must ensure to completely proof-read any written documentation commissioned before delivery to xxxx Translations. The Contractor will also take full responsibility for the quality of his/her work, including liability over work produced.”



In my opinion it would be reasonable to assume that this agency has a track record of having been sued by end users, possibly because of their own negligence in failing to check translations themselves.

Personally, I tend to avoid working with agencies that ask me to sign agreements that look as if they have been written by lawyers, and which unload all the liability on to me.


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Sheila Wilson  Identity Verified
Spain
Local time: 20:05
Member (2007)
English
+ ...
What else does it say about liability? Mar 10

Sanghyo Lee wrote:
“The Contractor must ensure to completely proof-read any written documentation commissioned before delivery to xxxx Translations. The Contractor will also take full responsibility for the quality of his/her work, including liability over work produced.”

Well, it isn't saying anything I wouldn't be prepared for. We do have to check our own work to catch any typos, botched edits or unnatural phrasing. We should also take responsibility for our own work. And if I mess up, it's natural that I accept some liability and either reduce the fee or waive payment for the job.

But this needs to be taken together with anything else that's said about liability. We shouldn't be liable to the agency just because they're being sued by the end client, for a start. They're supposed to take some responsibility too, so if they didn't get those multi-million dollar contract figures checked, they're partly to blame, and so is the proofreader if they didn't notice the slip. Of course, if any wordings get changed, the original translator is not to blame at all. If other clauses talk of "unlimited liability" etc then I run a mile. That isn't what I'm being paid for, and they aren't going to take my car, my life savings, or even my home in the worst case scenario.

The agency is always partly to blame, anyway: even if a translator messes up the job, it was the agency's decision to hire this supposed "expert"!

Copyright only goes to the agency when you've received full payment (or as full as you're going to get if there are quality issues). And I believe they only hold it until they've been paid by their client. I don't know really how it works but I don't think the translation side of things is where it belongs long-term.


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Sanghyo Lee  Identity Verified
South Korea
Local time: 04:05
Member (Mar 2017)
English to Korean
+ ...
TOPIC STARTER
It doesn't say anything more. Mar 10

I guess it is just a caution and asking for what translators normally do or should do.

[Edited at 2017-03-10 16:55 GMT]


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Thomas T. Frost  Identity Verified
Member (2014)
French to Danish
+ ...
I wouldn't worry about these clauses Mar 10

You are, after all, liable for your work as a freelancer, and you should also review your translation before delivering it, not just submit your first draft.

However, I have turned down contracts and NDAs with unreasonable clauses, such as penalties of 50,000 euros for breaching certain contract clauses, giving the outsourcer the sole discretion to determine if quality is acceptable or not, or giving the outsourcer the right not to pay at all if a translation is just one second late, if the outsourcer refused to change such clauses to something acceptable for both parties.

I would obviously not deliberately breach such clauses, but the risk is simply too great, and if an outsourcer insists on such clauses, it tells me they have an overly aggressive attitude to their business partners.


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Bernhard Sulzer  Identity Verified
United States
Local time: 15:05
English to German
+ ...
One should always be careful Mar 10

Sanghyo Lee wrote:

It doesn't say anything more.

I guess it is just a caution and asking for what translators normally do or should do.

[Edited at 2017-03-10 16:55 GMT]



You said this is part of a contract, so I believe there's lots more that you agree to with your signature. Aren't the consequences of your breach of contract discussed as well?
As a freelancer and independent service provider, you should determine the terms and conditions of your work.
Don't sign anything you don't understand.
Don't work with someone when you are uncertain about the consequences. It could mean being sued, scammed or exploited.

As a newcomer, you should probably tell your prospective clients that you follow Proz.com's professional guidelines ( see: http://www.proz.com/professional-guidelines?pg_version=1.0 ) You can endorse them on your profile page and there's no need to sign anything.

When it comes to outsourcers you don't know or have never worked with, don't assume anything and always be very careful. Check their Blueboard record. If you're not sure about what you will be responsible/liable for, don't work with them. And by the way, professional agencies do work with proofreaders who will read your work and check again with you before it is approved and sent to the end client. That doesn't mean they don't expect you to do an excellent job.

Hope this helps.
Bernhard

[Edited at 2017-03-10 19:16 GMT]


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Nikki Scott-Despaigne  Identity Verified
Local time: 21:05
French to English
privity of contract Mar 10

Sanghyo Lee wrote:

“The Contractor must ensure to completely proof-read any written documentation commissioned before delivery to xxxx Translations. The Contractor will also take full responsibility for the quality of his/her work, including liability over work produced.”



Nothing unusual here. Of course, the freelancer has to proof-read his/her own work before sending it to the client. Of course, the freelancer is responsible for the quality of the work he/she produces. We cannot just send in any old piece of text, no read through, and without assuming any responsibility for what we do. Do bear in mind that as you are a freelancer, your client is the agency. The agency expects you to provide work of a certain quality and to undertake certain checks.

Once you have provided the agency with the work, your part of the job is complete, although they may come back with questions and comments with regard to certain choices you have made. There is no contractual link between the freelancer and the end client. The agency is the intermediary. Liability under contract requires a direct contractual link known as "privity of contract". Freelancers have none with the end client. Contractual liability will exist between the freelancer and the agent. Contractual liability exists between the agent and the end client. There is not contractual liability between the freelancer and the end client.

Sanghyo Lee wrote:

To me it seems that they don't do any proofreading or quality management when I provide translation service not proofreading. So, it's all translator's responsibility but copyright of the work goes to the agency.



Maybe they do, maybe they don't. They should do, or it is certainly a good idea for the to do so. That is part of what the end client is paying for. If they wish to continue in business, they need to be sure that the work they are providing their clients is of the best quality possible. In fine, it is not your problem if they don't.

Each has a contractual liability to his/her client as I indicatedd above. Most importantly, the end client is relying upon the agency to do its job, that is to:
- find a competent translator to do the bulk of the translation to the best standard possible;
- proof-read and fine tune the final piece before delivering the work.

If the client is not happy, they go back to the agency and look at their contract. When this happens, as we have seen on these pages, agencies have been known to contact the freelancer. If the agent has decided to reimburse the client (in part, or in whole), that is not your problem. Even if you provide work of poor quality, the agent is there (theoretically) to take the punches on the chin, not the freelancer. The easy counter argument is that it is their job to proof-read and that your liability does not extend to the final piece delivered to the client. You have no control over that.

Here beginneth the lesson in law!
In countries based on the English legal system, other liabilities exist apart from those arising under contract law. Under the law of tort, a service provider may theoretically be liable for reasonably forseeable consequences of his/her work (acts or omissions), where the forseeability is not too remote (distant) and where there is reliance upon the service provided. This is all about negligence and compensation (called "damages").

Where the responsibilities are determined under a contract, the contract will be referred to. It is extremely unlikely that an agency's client would turn against a freelancer in tort as the agent is likely to have better insurance!

[Edited at 2017-03-10 19:33 GMT]


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Mirko Mainardi  Identity Verified
Italy
Local time: 21:05
Member
English to Italian
+ ...
Isn't that too generic and vague? Mar 11

I am referring to "full responsibility ... including liability". Sanghyo said that's the entire liability clause, and I can't see any reference to a time limit for the client's right of objection, nor to a quantitative limit concerning the maximum sum she could be held liable for, nor a clear indication about the parties towards which she could be considered liable (for quality issues, copyright breach, incidental damages or whatever a lawyer might dream up).

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Thomas T. Frost  Identity Verified
Member (2014)
French to Danish
+ ...
There are still laws Mar 11

Mirko Mainardi wrote:
I can't see any reference to a time limit for the client's right of objection,


If no time limit is indicated, the relevant statute of limitation in the competent jurisdiction will determine it.

Mirko Mainardi wrote:
a clear indication about the parties towards which she could be considered liable (for quality issues, copyright breach, incidental damages or whatever a lawyer might dream up).


That would be the other contracting party. She has no contractual relationship with anyone else (in relation to this contract).

Sometimes outsourcers include a clause that obliges the translators to delete the client's files on request. In such cases, I insist on a clause to the effect that if they request such deletion, they forfeit any right to bring any future claims against me, as I would no longer be able to prove what I had delivered.


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Mirko Mainardi  Identity Verified
Italy
Local time: 21:05
Member
English to Italian
+ ...
Laws... Mar 11

Thomas T. Frost wrote:

Mirko Mainardi wrote:
I can't see any reference to a time limit for the client's right of objection,


If no time limit is indicated, the relevant statute of limitation in the competent jurisdiction will determine it.


Of course, there are laws, but I'm not a lawyer and I have no intention of studying the legislation applicable to every possible jurisdiction before signing an agreement...


Mirko Mainardi wrote:
a clear indication about the parties towards which she could be considered liable (for quality issues, copyright breach, incidental damages or whatever a lawyer might dream up).


That would be the other contracting party. She has no contractual relationship with anyone else (in relation to this contract).


And yet, I have seen more than one agreement where "third parties" are brought into the picture about contractual liability... And even if that clause should be void under a specific jurisdiction, I'd rather avoid being sued in the first place to find that out...


Sometimes outsourcers include a clause that obliges the translators to delete the client's files on request. In such cases, I insist on a clause to the effect that if they request such deletion, they forfeit any right to bring any future claims against me, as I would no longer be able to prove what I had delivered.


Good point. I'll have to remember that! But really, I wish there was no need to go to such lengths and cavils, especially since that definitely doesn't make anyone's life easier, especially for those who don't have legal departments on their payrolls...


P.S. Just for reference, this is what I'm talking about: http://www.iti.org.uk/attachments/article/155/Model%20Terms%20of%20Business%20-%20Translator.pdf (sections 9 and 10)

[Edited at 2017-03-11 16:53 GMT]


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Nikki Scott-Despaigne  Identity Verified
Local time: 21:05
French to English
Taking full responsibility for the quality of one's work Mar 11

I think it is natural to expect a translator to take responsibility for his/her work. For the good work but also for mistakes. I do draw the line at others trying to make me assume responsibility for their mistakes though. We have no control over what is done to a text we have supplied to a client, agency or not. I have sometimes been quite pleased that my work is out there anonymously! You know, when after discussing terms in detail but the client insists of putting in some incorrect term that makes your piece read like a translation. Grr!

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