Hold harmless clauses in POs, NDAs and contracts Thread poster: Jo Macdonald
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Jo Macdonald 
Spain
Local time: 06:59
Italian to English
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First let me say I have absolutely no problem signing what I’d call a “normal” NDA or contract or working with a simple PO, but recently it looks like more and more agencies are putting blanket “hold harmless” clauses in them.
These clauses go something like “translator will pay any and all compensation agency’s clients might make a claim for in the way of damages” which imo is accepting a huge, undefined and unreasonable risk for something the translator has no cont... See more First let me say I have absolutely no problem signing what I’d call a “normal” NDA or contract or working with a simple PO, but recently it looks like more and more agencies are putting blanket “hold harmless” clauses in them.
These clauses go something like “translator will pay any and all compensation agency’s clients might make a claim for in the way of damages” which imo is accepting a huge, undefined and unreasonable risk for something the translator has no control over, namely the translation the agency gives their client, which might have been changed by an amateur proofreader or delivered late or whatever by the agency itself. Also imo the translator should be responsible for doing a good job for the agency, and the agency should be responsible for giving a good product to their client.
I’ve stopped working with a few small clients because of this also as it just doesn’t feel right to be sent a PO saying “we’re going to sue you” but I’m not looking forward to the day one of my bigger clients comes out with this novel idea.
Perhaps such a clause wouldn’t even hold up in court, and maybe I’m just worrying too much about signing these terms, but on the other hand I’m not even sure professional liability insurance would cover a claim made by an agency’s client against the agency that the agency takes me to court for.
I’d imagine it’d be a huge hassle, quite costly and pretty complicated to sort out who pays damages for whatever anyone might claim in a perverse chain of liability, although perhaps it’d be simple if the person doing the work has signed an agreement saying they are responsible for everything and all the actions of everyone involved.
Do you sign these agreements with no qualms, have you found a way to protect yourself against the potential complications, or do you tell the agency you won’t be working with them anymore?
Thanks in advance to anyone willing to shed light on this. ▲ Collapse
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John Fossey
Canada
Local time: 00:59
Member (2008)
French to English
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On the advice of an insurance agent, I put a sentence in the fine print at the bottom of my invoice:
"Notwithstanding any agreement to the contrary, since I have no control over the source or use of this translation, total liability, in every case and for any reason, shall be limited to the total amount actually paid for this invoice."
Would it stand up in court? Who knows? No one has ever questioned it. The agent said it would. But in any case it lets me feel mo... See more On the advice of an insurance agent, I put a sentence in the fine print at the bottom of my invoice:
"Notwithstanding any agreement to the contrary, since I have no control over the source or use of this translation, total liability, in every case and for any reason, shall be limited to the total amount actually paid for this invoice."
Would it stand up in court? Who knows? No one has ever questioned it. The agent said it would. But in any case it lets me feel more restful about signing NDAs.
[Edited at 2018-09-28 18:38 GMT] ▲ Collapse
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Dan Lucas
United Kingdom
Local time: 05:59
Member (2014)
Japanese to English
| Decline politely | Sep 28, 2018 |
Jo Macdonald wrote:
Do you sign these agreements with no qualms, have you found a way to protect yourself against the potential complications, or do you tell the agency you won’t be working with them anymore?
Because of the uncertainty you mention, I tell them that I need a clause limiting my liability to the maximum covered under my professional liability insurance. If they refuse, I move on.
A couple of years ago a London-based agency tried to get me to sign an outrageously one-sided agreement that made me liable for basically anything that could go wrong. At the same time the client T&Cs on their website expressly rejected any liability for anything to do with the translation in excess of the fees paid to them! This was the relevant section:
"(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Fees paid under the Contract;"
I didn't sign the agreement and so did not work with them, but I was so incensed by the hypocrisy that I wrote an article for the ITI bulletin, urging others to be more aware of these situations and the risk involved.
The only way we can change things is to not deal on these terms, and to make it clear why we do not deal on these terms.
Regards,
Dan
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I'm very careful with which contract clauses I sign, and I need to be more careful with the hold-harmless clauses too.
Due to the GDPR, a new flood of one-sided restrictions is underway. Such clauses typical oblige the translator to delete all client data within a very short time frame (not limiting this provision to personal data, of course) while failing to exonerate the translator for any liability that might arise later.
Some clauses are so badly written that they o... See more I'm very careful with which contract clauses I sign, and I need to be more careful with the hold-harmless clauses too.
Due to the GDPR, a new flood of one-sided restrictions is underway. Such clauses typical oblige the translator to delete all client data within a very short time frame (not limiting this provision to personal data, of course) while failing to exonerate the translator for any liability that might arise later.
Some clauses are so badly written that they oblige the translator to delete all data received from the outsourcer, which would include names and email addresses of PMs, the terms agreed, guidelines and instructions, POs, etc.
But under the GDPR, we have a legitimate reason for not deleting such data until the relevant statute of limitation sets in, as we need to be able to document what we have provided in case of a dispute.
Such a risk can also arise in cloud systems if we are unable to store a local copy of the translation provided.
I have turned down many unreasonable NDAs and other contracts through the years, although a few outsourcers have been willing to agree to reasonable terms instead. ▲ Collapse
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Tom in London
United Kingdom
Local time: 05:59
Member (2008)
Italian to English
I wouldn't sign an agreement like that - not least because it reveals a litigious attitude that would not be conducive to friendly long-term cooperation.
[Edited at 2018-09-28 15:01 GMT]
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Sheila Wilson
Spain
Local time: 05:59
Member (2007)
English
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| So the agency is responsible for nothing more than paying you? | Sep 28, 2018 |
Jo Macdonald wrote:
the translator should be responsible for doing a good job for the agency, and the agency should be responsible for giving a good product to their client.
Absolutely the way I think too. The more agencies think they can get away with zero responsibility, the less likely they will be to even pay in a timely manner !
I’m not even sure professional liability insurance would cover a claim made by an agency’s client against the agency that the agency takes me to court for.
I would imagine any insurer you had a contract with would be mightily upset at you signing up to such contracts. It puts them in an impossible situation. It could well be that their policy specifically excludes any claims where the claimant has signed away all their rights and accepted responsibility for everything. I know in car crashes they always insist that you never accept responsibility, even if you've done something very silly and you know perfectly well you caused it.
Do you sign these agreements with no qualms, have you found a way to protect yourself against the potential complications, or do you tell the agency you won’t be working with them anymore?
I wouldn't immediately go for any of those options. I'd first try to talk the agency into removing the clause. Often they put these things in simply because it seems like a good idea. If they won't consider any alternative then I'd certainly bid them goodbye. Fortunately, I rarely sign anything at all for my clients, even the agencies, although I am seeing an increasing use of contracts now after 10 years in the business. Normally, the boutique agencies I prefer working with accept my own T&C or we come to a mutual arrangement in an exchange of emails, and that's that.
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| I refuse to sign unlimited hold harmless clauses | Sep 28, 2018 |
Over the years I have signed large numbers of two-page NDA's which are jus that - Non-Declaration Agreements.
The Client and I promise solemnly to treat each other's data as confidential, and not disclose anything that is not already generally known to the public.
There may be a few words on quality. Not a peep about damages, or possibly just a mention that if the translator doesn't deliver on time, or if there are complaints about quality, part or all the fee may be withheld... See more Over the years I have signed large numbers of two-page NDA's which are jus that - Non-Declaration Agreements.
The Client and I promise solemnly to treat each other's data as confidential, and not disclose anything that is not already generally known to the public.
There may be a few words on quality. Not a peep about damages, or possibly just a mention that if the translator doesn't deliver on time, or if there are complaints about quality, part or all the fee may be withheld. Simple common sense and good ethics.
I refuse to sign the 'hold harmless' clauses. Earlier this year, I was actually a drop in an ocean that persuaded one agency to alter their terms. I said I did not buy the 'don't worry, it won't happen' argument. There is always a first time. Either they don't mean it, so they might as well delete the clause, or some day, someone will take them at their word.
The client said they could not have 30 different contracts for all the different kinds of people they worked with... and I said they could not have a 'one-size-fits-all' contract either. I regularly translate contracts for big companies who handle enormous orders - and limit their liability. No one in their right minds accepts liability for indirect losses, loss of profits, loss of goodwill, and claims from 'each and every' person and their dog. (I've just translated one today!) If the big companies can limit their liability, so can we.
Insurance or not, we just don't have that kind of assets anyway. ▲ Collapse
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| Who should take the hit then? | Sep 29, 2018 |
If we’re not responsible when we mess up, who is?
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DZiW (X)
Ukraine
English to Russian
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| directly limited | Sep 30, 2018 |
Chris, an agency is but a middleman (a-la dropshipper), and a translator morally and legally could be liable before the agency only--regarding certain terms, not for agency-end client issues. Meanwhile rather many agencies abuse the contractual terms and shift their responsibilities unto their translators too. Considering that even decent linguists are poor businessmen, such agencies are free to make translators accountable for real and fake faults.
Why, several times my colleagues... See more Chris, an agency is but a middleman (a-la dropshipper), and a translator morally and legally could be liable before the agency only--regarding certain terms, not for agency-end client issues. Meanwhile rather many agencies abuse the contractual terms and shift their responsibilities unto their translators too. Considering that even decent linguists are poor businessmen, such agencies are free to make translators accountable for real and fake faults.
Why, several times my colleagues had "big problems" because the end clients allegedly rejected their works, so the agency (1) paid nothing, promising to "blacklist"; (2) got a huge "discount", or (3) changed the rates and terms, asking for "free" minor favors. However, the very simple question: "Where is your proclaimed QA and why did you accept my work?" put the agency in a very awkward position, but how many read before signing and dare to ask when necessary?
Therefore, the answer to your semi-rhetorical question is... THE AGENCY ▲ Collapse
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| Proportionality | Sep 30, 2018 |
Chris S wrote:
If we’re not responsible when we mess up, who is?
Who said translators shouldn't be responsible for their mistakes? The point is being held accountable within reason, and unlimited liability toward your clients (who at the same time use "hold harmless" clauses), your clients' clients, and their dogs, is NOT reasonable*, and I suspect NOT proportional to the compensation received even by the most elite/niche translators.
Tangentially, who is responsible when an in-house translator "messes up"?
*For instance: "The liability of the translator on any grounds whatsoever shall be limited to the invoiced value of the work, except where in connection with any consequences which are reasonably foreseeable:
1) the potential for such liability is expressly notified to the translator in writing, and
2) such liability is restricted to an agreed limit of cover under the professional indemnity insurance available to translators." - http://tinyurl.com/ybg4hlmg
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| That is what I have indemnity insurance for | Sep 30, 2018 |
Chris S wrote:
If we’re not responsible when we mess up, who is?
Up to now, whenever I have messed up, it has been a minor typo or small hiccup, and I have got away away with apologising and sending a corrected file. The agency's proof reader or someone like that has caught the error in time. I've been lucky.
In one or two cases I have heard of, errors have been costly, but liability has been kept to a definable level - like reprinting brochures or something like that. If one of my errors had slipped through the safety net, then of course, I would accept liability for direct damage, and I am covered for quite a lot.
I once heard a discussion about a poultry farm that went bankrupt, partly because the EU rules on Newcastle disease had been mistranslated. (I think a negative was omitted, so the rules were applied far more widely than they should have been.) The rules were not translated expressly for that case - they had been past a large number of officials and administrators who possibly ought to have checked. Some of the clauses I have refused to sign have been so badly worded that I really do not know whether the terms would oblige a translator in that kind of situation to 'hold harmless' all the owners and employees on the farm. For how many years? Etc.
_____
Or if I got the figures wrong in a medical translation - I am notoriously bad at figures, and I check to the best of my ability, but I make sure someone else checks too. My insurance does not cover life insurance and long-term care for anyone seriously injured or overdosed, plus compensation to all the relatives, or whatever might result in a worst-case scenario. People treating the patient also have a responsibility...
I don't translate engineering, but if a building or a bridge collapsed…
Once the translation has been sent on to the client, there are others who also have a duty to look at what they are working with and apply their expertise and/or common sense, and they are also responsible, even if you can trace an error back to a translator.
The problem is that a technically tiny translation error can prove enormously expensive. It is neither practicable nor fair to wipe all the liability off on the translator.
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Eliza Hall
United States
Local time: 00:59
French to English
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| Good solution, but a little tweak... | Oct 2, 2018 |
John Fossey wrote:
On the advice of an insurance agent, I put a sentence in the fine print at the bottom of my invoice:
"Notwithstanding any agreement to the contrary, since I have no control over the source or use of this translation, total liability, in every case and for any reason, shall be limited to the total amount actually paid for this invoice."
Would it stand up in court? Who knows? No one has ever questioned it. The agent said it would. But in any case it lets me feel more restful about signing NDAs.
[Edited at 2018-09-28 18:38 GMT]
I like that, but would want to add something along the lines of, "Your acceptance of this invoice constitutes your agreement with this term."
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Samuel Murray
Netherlands
Local time: 06:59
Member (2006)
English to Afrikaans
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| @Jo and @John (and @Chris) | Oct 2, 2018 |
Jo Macdonald wrote:
Do you sign these agreements with no qualms, have you found a way to protect yourself against the potential complications, or do you tell the agency you won’t be working with them anymore?
At some stage in my life I discovered what "hold harmless" and "indemnity" really meant, and I was surprised that so few other people knew what it meant, or thought (as I had thought) that it means that you promise not to sue the other party or that you promise to take responsibility for your own problems. These clauses are everywhere! It is practically impossible to sign up for anything or participate in any organised event without having to sign this.
Even if you could convince the organiser of an event what the clause really means, he's not going to change it, and you would have to be content to sit on the sidelines. In addition, some people believe that if you refuse to promise these things, then you must be up to something. Most people seem to think that if the risk of something is very small (or even non-existent), then it should be acceptable to make bets on it never happening. But my thinking is (and this is probably share by all in this thread): why take the risk at all? So you sign these things, all the time, unless you live in a cave.
Although I prefer to read every NDA or agreement that agencies send me, and I try to get them to see it my way, I think we have to be sensible and weigh the risk just like everybody else in this world, instead of blanketly avoiding it.
John Fossey wrote:
Would it stand up in court? Who knows? No one has ever questioned it. The [insurance] agent said it would. But in any case it lets me feel more restful about signing NDAs.
No, it would probably not stand up in court. Contractually, an invoice is simply a reminder to pay. You can't expect that the other party to agree to an alteration to the terms of your agreement simply because he pays an invoice on which you added those new terms.
And what's to stop an agency from playing hard ball -- "sorry, please remove that line from your invoice or else we can't pay you". The fact that you refuse to accept payment doesn't mean the contract of supplying the translation is void, so the client can still use your translation. Still, it can't hurt to add those words, can it?
It's curious how many PMs (and agency owners, even) believe that assurances given via e-mail supersede the signed contract. If the contract says "all deviations from this agreement must be in writing and signed by both parties", does it count if the PM or agency owner wrote it in the mail? I'm not a lawyer. But if the agency owner himself writes it to me, I typically accept.
Chris S wrote:
Who should take the hit then? If we’re not responsible when we mess up, who is?
I think you and I had this conversation before (-:
Just what do you think does "being responsible for when you mess up" actually mean? To hold the agency harmless means "I promise to pay for all expenses relating to your suspicions that had I messed up, even if it turns out that I hadn't". Suppose the agency suspects that you breached confidentiality (e.g. following a twitter post of yours), and they hire a lawyer and an investigator to evaluate the situation, who's going to pay for that lawyer and investigator? You, if you had said that you would (and saying "hold harmless" is saying it). And if it turns out that you are innocent after all... will the lawyer and investigator waive their fees and/or will the agency agree to pay for their services from its own pocket? Nope, because you had said that you would (for that is what "hold harmless" means).
If I misunderstand this, please can anyone here let me know.
[Edited at 2018-10-02 09:47 GMT]
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