U.S. law - "Hold Harmless" agreement with agency
Thread poster: Textklick

Textklick  Identity Verified
Local time: 12:04
German to English
+ ...
Jul 14, 2007

I don't know much about U.S. law. This is a standard agreement that a (very respectable) agency has asked me to sign.

Does it mean that I promise to keep out of any lawsuits, or that I carry the can? Patricularly in reference to clauses (iii) and (iv).

Grateful if someone could kindly reassure me.

I understand that I am an independent contractor of XXX, and that XXX does not control the manner in which I perform my profession. I shall indemnify, defend, and hold harmless XXX, its owners, directors, officers, employees, representatives, agents, successors and assigns from and against any and all losses, damages, costs and expenses, including reasonable legal fees, resulting from, arising out of or incident to any suit, claim or demand based on (i) any bodily injury I sustain in the course of my duty, (ii) my performance interpreting/translating, (iii) any taxes and from any duties, levies, tariffs, or like fees that may be imposed by any government or collective authority upon manufacture, advertisement, promotion, use, import, licensing or distribution of items by Client, (iv) any claim that any element of the Deliverable infringes any copyright, trademark, patent, or other proprietary right, or (v) any breach of the covenants, representations and warranties made between myself and XXX.

Thanks
Chris

[Edited at 2007-07-14 17:02]


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 12:04
Dutch to English
+ ...
Hold harmless Jul 14, 2007

Textklick wrote:

I don't know much about U.S. law. This is a standard agreement that a (very respectable) agency has asked me to sign.

Does it mean that I promise to keep out of any lawsuits, or that I carry the can? Patricularly in reference to clauses (iii) and (iv).

Grateful if someone could kindly reassure me.

I understand that I am an independent contractor of XXX, and that XXX does not control the manner in which I perform my profession. I shall indemnify, defend, and hold harmless XXX, its owners, directors, officers, employees, representatives, agents, successors and assigns from and against any and all losses, damages, costs and expenses, including reasonable legal fees, resulting from, arising out of or incident to any suit, claim or demand based on (i) any bodily injury I sustain in the course of my duty, (ii) my performance interpreting/translating, (iii) any taxes and from any duties, levies, tariffs, or like fees that may be imposed by any government or collective authority upon manufacture, advertisement, promotion, use, import, licensing or distribution of items by Client, (iv) any claim that any element of the Deliverable infringes any copyright, trademark, patent, or other proprietary right, or (v) any breach of the covenants, representations and warranties made between myself and XXX.

Thanks
Chris


Means you'll carry the can at the end - basically the same as indemnifying aother party against loss. "Indemnify and hold harmless" is a standard doublet (synonym string) in US law - in this case it's part of a triplet.

It's a set phrase used in contract law to signify the obligation of one party to make good to another party in the event of a specified loss.

Hope this helps
Debs

[Edited at 2007-07-14 18:23]


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Textklick  Identity Verified
Local time: 12:04
German to English
+ ...
TOPIC STARTER
Aha! Jul 14, 2007

Thanks Debs

I suppose I should have worded my question as "would you sign one of these?"

Chris

[Edited at 2007-07-14 22:05]


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 12:04
Dutch to English
+ ...
No, in its present form .. Jul 14, 2007

Textklick wrote:

Thanks Debs

I suppose I should have worded my question as "would you sign one of these."

Chris


... no, with relation to performance (work quality) but if I did (and a big IF), only after limiting any liability to the extent of my invoice amount, and only if I was found by a competent court to have personally acted with intent (malice) or have been grossly negligent.

Why: they are the agency - they are responsible for quality control of the final product that goes to the client (one would hope - after all, they are the ones offering the world and more in their advertising) and at the rates they charge, they can well afford their own professional indemnity insurance. As the translator, I have no control over the final product, so I'm not going to have them pass the buck, without limitation, on claims relating to work quality.

Performance to the extent it covers deadlines, I understand their need to be covered if I don't deliver on time or at all, but again I'd limit it to my invoice amount and specifically exclude indirect damage (consequential losses, loss of profits etc)

I'd have no problem with an agency covering it's a*** for things like breach of confidentiality.

Likewise I'd be prepared as a translator to waive any claims for bodily injury - going to be impossible in law anyhow to prove a causal connection between my carpal tunnel syndrome and their particular translation

Plenty of other issues I have with it, but on my way out shortly so just pointing out a few immediate concerns - will return to the thread tomorrow if I get a chance (provided I don't melt first in this damn heat!)

Have a good weekend
Debs

[Edited at 2007-07-14 18:50]


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Ken Cox  Identity Verified
Local time: 13:04
German to English
+ ...
with L/L Jul 14, 2007

You don't want to sign this without some some sort of reasonable limitation on the amount of liability. As is so often the case, the agreement has been worded to stack all the cards in favour of the agency (that's what their lawyers are paid to do), but that doesn't mean you have to accept it as is.

[Edited at 2007-07-14 19:40]


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Mervyn Henderson  Identity Verified
Spain
Local time: 13:04
Member
Spanish to English
+ ...
Two can play at that game? Jul 15, 2007

Like Chris, recently I received one of these from a likewise respectable customer. With less of the "holding harmless-notwithstanding-henceforth-and-furthermore" quasi-paranoiac stuff, but an agreement to sign nonetheless. What I found strange was that I have worked with them for 10 years, 100% problem-free. They said they had been talking to some lawyers who had advised this. Hmm.

I have not signed it (or suggested changes, since I'm not a lawyer), and there has been no contact since. This doesn't bother me unduly, because frankly they had been getting in the way of more profitable customers for a couple of years now.

Aside from all this, I have often wondered whether it might not be a good idea to have one's own "agreement" for customers to sign. After all, their agreements are all geared up on their side - no "Penalties for late payment" section there, is there? But there are always double helpings of "Penalties for late delivery or sub-standard work".

Better stop before moan syndrome kicks in for the rest of the day.


Mervyn


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Paul Merriam  Identity Verified
Local time: 07:04
Member (2008)
Russian to English
+ ...
I don't recommend signing this Jul 15, 2007

Textklick wrote:

I don't know much about U.S. law. This is a standard agreement that a (very respectable) agency has asked me to sign.

Does it mean that I promise to keep out of any lawsuits, or that I carry the can? Patricularly in reference to clauses (iii) and (iv).

Grateful if someone could kindly reassure me.

I understand that I am an independent contractor of XXX, and that XXX does not control the manner in which I perform my profession. I shall indemnify, defend, and hold harmless XXX, its owners, directors, officers, employees, representatives, agents, successors and assigns from and against any and all losses, damages, costs and expenses, including reasonable legal fees, resulting from, arising out of or incident to any suit, claim or demand based on (i) any bodily injury I sustain in the course of my duty, (ii) my performance interpreting/translating, (iii) any taxes and from any duties, levies, tariffs, or like fees that may be imposed by any government or collective authority upon manufacture, advertisement, promotion, use, import, licensing or distribution of items by Client, (iv) any claim that any element of the Deliverable infringes any copyright, trademark, patent, or other proprietary right, or (v) any breach of the covenants, representations and warranties made between myself and XXX.



Some specific problems:
(iii) As it stands, you're indemnifying them if they fail to pay VAT to the Irish authorities for providing your translation to their client in Ireland. So you're responsible for paying their VAT.
(iv) If they give you a copyrighted work to translate and you do, then if they get sued by the original copyright owner, that's your problem. (That's in addition to any suit by the original copyright holder against you.)

The three verbs:

indemnify: If they get sued and ordered to pay damages, you'll pay them.
defend: If they get sued, you'll defend the suit.
hold harmless: you agree they don't have any liability to you. So you can't try to recover any damages from them. Because you also indemnify them, their lack of liability means that the liability is yours.

The next step is yours. It's up to you whether you tell them why you don't want to sign or simply ignore them.


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xxxIreneN
United States
Local time: 06:04
English to Russian
+ ...
And if you are an interpreter too... Jul 15, 2007

Lawyer-Linguist wrote:

Likewise I'd be prepared as a translator to waive any claims for bodily injury - going to be impossible in law anyhow to prove a causal connection between my carpal tunnel syndrome and their particular translation


Don't sign this one if you might expect expect to ride helicopters to or over the drilling rigs, or climb 8 levels of the service tower at the launch site, or simply slip on a banana peel in the conference room:-)...

You can hardly find any US contract without Hold Harmless clause, but there should be 2 of them: 1 for the client, and 1 for the contractor benefit. The rest can't be said any better than Deborah already did...


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Textklick  Identity Verified
Local time: 12:04
German to English
+ ...
TOPIC STARTER
Thanks to all Jul 15, 2007

Well - that confirmed my suspicion. I'll be honest, tell them it's a no-no and see what they say.

Fortunately, I don't particularly need them.

Cheers
Chris

P.S. to Debs. "Damn heat", you say? Enjoy it while you have it. In S.E. England the summer has been remarkably noticeable by its absence.


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abdullah erol
Local time: 14:04
English to Turkish
+ ...
signable version Jul 15, 2007

I found the original text on the net, which seems unacceptable.
It looks like a one-paragraph "unconditional surrender". Below
is a signable version (still one paragraph):
I understand that I am an independent contractor of XXX, and that XXX does not control the manner in which I perform my profession. I shall indemnify, defend, and hold harmless XXX, its owners, directors, officers, employees, representatives, agents, successors and assigns from and against any and all losses, damages, costs and expenses, including reasonable legal fees, resulting from, arising out of or incidental to any suit, claim or demand based on (i) any bodily injury I sustain in the course of my duty, (ii) my performance in interpreting/translating, or (iii) any breach of the covenants, representations and warranties made between myself and XXX.


[Değişiklik saati 2007-07-15 16:28]


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 12:04
Dutch to English
+ ...
Right decision Jul 15, 2007

Textklick wrote:

P.S. to Debs. "Damn heat", you say? Enjoy it while you have it. In S.E. England the summer has been remarkably noticeable by its absence.



Believe me, the heat gets too much after a while, esp. if you're very fair-skinned like me.

Would have thought after moving to South Africa as a kid, I'd be used to it but the heat here in Portugal (Algarve at least) can get quite unbearable, especially where I am in the hills.

Hope your weather picks up and you have a lengthy Indian summer to make up for it.

You're doing the right thing regarding the contract - like you say, you don't need it, there's plenty of others whose terms aren't as draconian.

Bye for now, cool enough to go outside and BBQ with a glass of chilled wine at last
Debs


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U.S. law - "Hold Harmless" agreement with agency

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