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Help with understanding legalese/legal impacts (liability; agency's SLA)
Thread poster: Nina Esser

Nina Esser
Germany
Local time: 17:54
Member (2017)
English to German
Feb 27

Dear all,

I have been sent an agency's SLA to sign, which looks reasonable for the most part of it, but I'm wondering if the two below clauses effectively mean they want me to assume unlimited liability? I'd be grateful for any input from more "legally-versed" people.

Contractor's liability
The Contractor shall be liable for all damages that he or his assistants or agents causes or cause for [client] as part of their activities. Liability in the event of minor negligence shall be limited to the simple value of the assignment.

Indemnity
The Contractor shall undertake to comply with all laws and regulations that in any way pertain to his translation services and shall save [client] harmless from all claims that may arise from a breach or violation of the aforementioned regulations and provisions on the part of the Contractor.


Note: The SLA mentions quite a few quality aspects the contractor has to 'pay special attention to', e.g. adherence to style guide, client terminology, specific instructions, previous translations. Under the descriptions of the various activies covered by the SLA (translation, revision, review, etc.), it even reads 'translation of the source text into the target language, *flawless in terms of content and form*. I assume it's highly unlikely a client would sue for non-adherence to their style guide, but then we're always thinking worst-case with these clauses, right?


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Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
FWIW Feb 27

My thinking on these silly SLA things is that they only ever seem to come from agencies who don't pay very much and must therefore mostly use translators who aren't very good, so they clearly don't actually care about quality and are unlikely to try to enforce any of these draconian liability clauses if you miss out a comma.

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Sheila Wilson  Identity Verified
Spain
Local time: 16:54
Member (2007)
English
+ ...
No mention of "unlimited liability" Feb 27

They don't seem extreme to me. The first one specifically says your liability will be limited to your fee for the job. Mind you, I don't see why these clauses are necessary, as commercial law in many (most? all?) countries by default allows for non-payment when work delivered is clearly not "fit for purpose". But this SLA doesn't seek to make you liable for millions of euros/dollars in damages if you miss a typo, so I don't personally see it as a stopper. It would depend on all the vibes I was getting from the outsourcer.

My own experience has been that those clients who take the most care in choosing their suppliers and monitoring their work during the first job or two rarely find it necessary to draw up a contract of any kind. I've only ever got regular work from one or two agencies who've asked for multi-page contracts to be signed, and I've refused to sign many more on the basis that they were abusive. I don't think I've signed anything with any of my current regulars.


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Teresa Borges
Portugal
Local time: 16:54
Member (2007)
English to Portuguese
+ ...
I agree with Sheila: They don't seem extreme to me. Feb 27

I’ve been around translating for over 30 years and I’ve been working for some long-standing customers without a SLA or a NDA. On the other hand, I have a large folder filled with signed SLAs and NDAs sent by agencies with which work never materialized!

I often wonder: what’s the point? I’ve never heard of a translator becoming subject to liability…


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Giovanni Guarnieri MITI, MIL  Identity Verified
United Kingdom
Local time: 16:54
Member (2004)
English to Italian
Not extreme? Feb 27

Nina Esser wrote:
Contractor's liability
The Contractor shall be liable for all damages that he or his assistants or agents causes or cause for [client] as part of their activities.


This means that, in case of an error judged (by whom?) to be serious, the contractor will be liable for all the damages... this could be thousand and thousands of euros... if this is not extreme to you...

[Edited at 2018-02-27 13:01 GMT]


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Eileen Ferguson  Identity Verified
Germany
Local time: 17:54
Member (2012)
German to English
+ ...
Yes, your liability will be unlimited for the most part Feb 27

My understanding is that your liability is unlimited, except where there is only minor negligence, in which case it will be limited to the value of the assignment.

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Sheila Wilson  Identity Verified
Spain
Local time: 16:54
Member (2007)
English
+ ...
And the next sentence? Feb 27

Giovanni Guarnieri MITI, MIL wrote:

Nina Esser wrote:
Contractor's liability
The Contractor shall be liable for all damages that he or his assistants or agents causes or cause for [client] as part of their activities.


This means that, in case of an error judged (by whom?) to be serious, the contractor will be liable for all the damages... this could be thousand and thousands of euros... if this is not extreme to you...


The next sentence reads "Liability in the event of minor negligence shall be limited to the simple value of the assignment." Do you think any translator would ever do anything worse than show minor negligence? Most of us aren't saboteurs or spies .


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Mirko Mainardi  Identity Verified
Italy
Local time: 17:54
Member
English to Italian
+ ...
Agree Feb 27

Giovanni Guarnieri MITI, MIL wrote:

Nina Esser wrote:
Contractor's liability
The Contractor shall be liable for all damages that he or his assistants or agents causes or cause for [client] as part of their activities.


This means that, in case of an error judged (by whom?) to be serious, the contractor will be liable for all the damages... this could be thousand and thousands of euros... if this is not extreme to you..


Agree. Additionally, it seems to me the indemnity clause extends the translator's liability indefinitely, since they will also be responsible toward the end client (the outsourcer's client) and any third party.
For instance, based on that clause, the translator could theoretically be held liable for (say) a purported copyright violation claimed by the copyright holder...

Then we can reason all we want on whether similar clauses are ever enforced or not, but point is they're in a contract you're signing...


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Kay Denney  Identity Verified
France
Local time: 17:54
Member (Apr 2018)
French to English
saboteurs or spies Feb 27

Sheila Wilson wrote:

Giovanni Guarnieri MITI, MIL wrote:

Nina Esser wrote:
Contractor's liability
The Contractor shall be liable for all damages that he or his assistants or agents causes or cause for [client] as part of their activities.


This means that, in case of an error judged (by whom?) to be serious, the contractor will be liable for all the damages... this could be thousand and thousands of euros... if this is not extreme to you...


The next sentence reads "Liability in the event of minor negligence shall be limited to the simple value of the assignment." Do you think any translator would ever do anything worse than show minor negligence? Most of us aren't saboteurs or spies .


Sure we're not out to sabotage our clients' business. But remember the case a few years back where patients died because of doctors using the wrong amount of (IIRC) contrasting product for scans. It was the translator who put the decimal point in the wrong place when translating the instructions for the scanning device. He didn't do it on purpose, but people died as a result of his negligence. It's not minor when people have died, even if the actual mistake may appear to be minor.


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Dan Lucas  Identity Verified
United Kingdom
Local time: 16:54
Member (2014)
Japanese to English
When in doubt Feb 27

Nina Esser wrote:
I assume it's highly unlikely a client would sue for non-adherence to their style guide, but then we're always thinking worst-case with these clauses, right?

Exactly, we're thinking worst-case scenario. It only takes one such event to bankrupt you and take from you every asset of value that you own. So, if in doubt, don't sign. My approach is that a high-quality agency will not attempt to make you assume unlimited liability, so those that do are probably not worth working for.

Regards,
Dan

[Edited at 2018-02-27 20:58 GMT]


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Tania123
Argentina
Local time: 12:54
Member (2017)
Spanish to English
+ ...
Patient deaths Feb 27


Sure we're not out to sabotage our clients' business. But remember the case a few years back where patients died because of doctors using the wrong amount of (IIRC) contrasting product for scans. It was the translator who put the decimal point in the wrong place when translating the instructions for the scanning device. He didn't do it on purpose, but people died as a result of his negligence. It's not minor when people have died, even if the actual mistake may appear to be minor.


Do you have a link for this please? I would like to read up on it.

Thanks


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Sheila Wilson  Identity Verified
Spain
Local time: 16:54
Member (2007)
English
+ ...
Yes, I remember that from the news Feb 27

Texte Style wrote:

Sheila Wilson wrote:
The next sentence reads "Liability in the event of minor negligence shall be limited to the simple value of the assignment." Do you think any translator would ever do anything worse than show minor negligence? Most of us aren't saboteurs or spies .


Sure we're not out to sabotage our clients' business. But remember the case a few years back where patients died because of doctors using the wrong amount of (IIRC) contrasting product for scans. It was the translator who put the decimal point in the wrong place when translating the instructions for the scanning device. He didn't do it on purpose, but people died as a result of his negligence. It's not minor when people have died, even if the actual mistake may appear to be minor.

What I didn't know (or had more likely forgotten) was that a translator had caused the mix-up. It must have been devastating for them. But maybe misplacing a decimal point would legally be classed as a "minor negligence" in terms of the translation of a text - despite any consequences. Also, remember that we only have a contract with our client, and in the case of an agency that means we aren't directly responsible for any losses or damages incurred by the end client.

But it is certainly something for everyone to think about before signing any agreement. I wouldn't want to dictate what should and shouldn't be accepted by others.


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Nina Esser
Germany
Local time: 17:54
Member (2017)
English to German
TOPIC STARTER
Thanks everyone! Feb 27

Thanks everyone for your thoughts on this. I made up my mind and asked the agency to change the clause and put a limit on the liability. I'm not overly optimistic that it's possible (I know from my own PM experience that Management usually does not want umpteen different versions of their SLA, even if it's a decent agency), but I think I can sleep better if I do not sign any such clauses Also, I think it's always good to bring these issues to the agencies' awareness. Again, I know from my own PM experience that agencies might simply put together an SLA based on their client's SLAs, without giving it much additional thought.

@Texte Style, like Tania I'd really like to read up on the lethal translation error you mentioned. I've been telling my husband only today that there has never been a case of serious consequences because of a translation error, at least none that would justify a law suit

[Edited at 2018-02-27 22:58 GMT]


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Andy Watkinson
Spain
Local time: 17:54
Member
Catalan to English
+ ...
Probably none Feb 28

If we're going to even contemplate the dangers and miseries of professional mishaps, a thought for the French translator of UN Resolution 242 wouldn't be amiss. Poor sod.

I've signed dozens of documents like this, some of which I didn't even bother to read for the simple fact that I've never heard of a single case of a translator being sued. Not one in 40 years. Not saying it's impossible. Neither is being struck by lightning.

I think this fear of being struck by lightning comes from this kind of thinking:

"...it's in a contract you're signing."

So what. Prove it. Prove that such a thing as a "flawless" (sic) translation exists.
Contracts are not enforceable by stint of their mere existence. It must be proved that the "reasonable business person" in question was bound by reasonable terms which they would not have knowingly entered into.
"Flawless" is not a reasonable term. And in any case, what agency would take such a case to court to seek huge sums from an individual? I believe your total exposure boils down to not getting paid for a job, and even then if you believe your work was sound, contest it.

In real life, this kind of thing is only applied to companies.

I do happen to have liability insurance but only because one important client of mine is a multinational ergo I'm subject to the same T&C as all their other providers. The difference is I'm unlikely to deliver 25,000 malfunctioning software packages which they would make me pay for were I a corporate provider because I'd have the €xxx million they're seeking.

Lastly, I mostly agree with everyone else that those agencies/connections which keep paperwork, SLAs, NDAs to a minimum usually turn out to be the best, regular contacts you'll get.
So my advice would be if you really want to work with them sign it. If not.....


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Michael Wetzel  Identity Verified
Germany
Local time: 17:54
German to English
Indirect responsibility Feb 28

Sheila Wilson wrote:

What I didn't know (or had more likely forgotten) was that a translator had caused the mix-up. It must have been devastating for them. But maybe misplacing a decimal point would legally be classed as a "minor negligence" in terms of the translation of a text - despite any consequences. Also, remember that we only have a contract with our client, and in the case of an agency that means we aren't directly responsible for any losses or damages incurred by the end client.


This has always seemed like the key point to me: You have a contract with an agency who has a contract with a business who has a contract with a consumer. Let's stick with the case mentioned here: either it really happened or it is useful as a thought experiment.

So what happens after the patient dies? The patient (consumer) sues the hospital (business). The hospital loses and has to pay up. The hospital argues that the key factor was that their employee was misinformed and (not, for example, incompetent for failing to identify what may have been an obvious error) and sues the translation agency for their damages. The translation agency then sues the translator, because the translator made the error and the agency has an adequate quality-control system in place, which happened to not catch this error. The translator is indirectly responsible for the losses incurred by the end client and everyone in between.

Can the translator then say: You got me and I'm also terribly sorry about the whole thing, so here's the 87 euros I got paid for translating the instructions? That seems ridiculous and I can't imagine that is how it usually works, whatever the contract says. The translator's insurer takes the case to trial and shows that the agency's poor quality control was the actual source of the problem or the insurer forks over the cash for the settlement.
Imagine this: Someone has a bungee-jumping business and fails to check a cord once and it breaks and someone dies, can they say: "I'm terribly sorry, it's a tragedy, but we had a contract limiting liability for damages to the amount paid. Here's 50 euros and my heartfelt condolences."

I know that German courts have sometimes (I don't know how consistently) decided that even B2B contract clauses limiting damages to an arbitrary amount (like the payment for the service) are null and void if they bear no relation to a realistic estimate of the actual damages that might occur on account of faulty work.

Aside from that, I agree with everyone else that you probably shouldn't sign something that makes you uncomfortable and that translators being sued for errors seems so rare that it probably isn't worth insuring yourself against (although I personally pay up every year for errors-and-omissions insurance for certain types of damages = if a book needs to be reprinted because of my error, for example).

The really stupid thing about clauses like this is that - in the absence of an agreement to the contrary - businesses are obviously responsible for the losses their clients incur on account of their faulty work.


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