Contracts, contracts, contracts everywhere!!!
Thread poster: Tomás Cano Binder, BA, CT

Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 14:14
Member (2005)
English to Spanish
+ ...
Oct 9, 2010

Dear new translators,

This is some advice I wanted to share with you.

All translators who started in this industry 15-20 years ago remember a world in which companies entrusted us with their work and trusted that we would behave profesionally, i.e. that we would not misrepresent capabilities or qualifications, we would take good confidential care of their materials, and we would work to the best of our ability and deliver in due time.

Apparently that time is over. Most agencies now expect us to sign different contracts and agreements, even before translation tests and, in some cases, even before discussing rates!

Agencies say that they need us to sign their contracts just because of their ISO certification or for a whole range of other reasons, but the fact is that we should only sign the contracts we agree with, basically because they will be enforced from the moment we sign them.

I strongly recommend everyone to carefully read all these contracts we get sent, think twice whether their clauses are acceptable, and only sign them after proper discussion and ammendment of the parts we don't agree with.

Signing contracts just as a first step of a negotiation process is plain foolish! Never do that! Before you know if, when and how much work you will get from the customer, you will be bound to a ton of obligations even years after the termination of the contract!

Good luck!


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Samuel Murray  Identity Verified
Netherlands
Local time: 14:14
Member (2006)
English to Afrikaans
+ ...
@Tomás Oct 9, 2010

Tomás Cano Binder, CT wrote:
I strongly recommend everyone to carefully read all these contracts we get sent, think twice whether their clauses are acceptable, and only sign them after proper discussion and ammendment of the parts we don't agree with.


What you're saying sounds so obvious, but continue to be amazed by colleagues who sign contracts that I would never sign unless my life depended on it (and sometimes not even then). Some translators seem to think that "standard contract" means "it won't harm either party", and so they sign without reading.

On the other hand, so much of a contract is legal terminology, and no-one really knows that those clauses really mean. You might think you know what they mean, but do you really? Some clauses look really bad but are in fact harmless (e.g. many "equitable consideration" clauses) while some clauses sound reasonable but are in fact completely unreasonable (e.g. many "hold harmless" clauses). And the worst is that a lawyer in your own country won't be able to tell you what a clause means in the courts of another country. We all take chances when we sign anything.

What would be nice is if it would be allowed on this forum to discuss such clauses. In other words, not to give legal advice, but to explain in plain English what some of those clauses mean and what their (unseen) consequences may be. Perhaps for the moment we can put such posts in the Scams forum, and just be sure to back up anything we say with a couple of URLs (would that appease ProZ.com staff?).

Signing contracts just as a first step of a negotiation process is plain foolish!


Yes and no. Seeing the contract right from the start makes it possible for you to see immediately whether it's a waste of time attempting to deal with the client.

Before you know if, when and how much work you will get from the customer, you will be bound to a ton of obligations even years after the termination of the contract!


Only once or twice have I seen contracts which would have applied to me even if I did no work for the agency. Once was an agreement not to hack the end-client's software (ever, regardless of where I get it from). I signed, but didn't get the job, so now I can't hack their software. Bummer.

But on a serious note, I agree with the sentiment that a contract should not bind you to something in the case where no work is done for the client. Most of my contracts apply only to the working relationship between the client and translator, and not to anything outside of that.


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Anna Skirdenko  Identity Verified
Russian Federation
Local time: 15:14
English to Russian
+ ...
discussion of clauses Oct 9, 2010

Discussion of clauses will be really helpful. I'm new to proz (though the profile has been created a couple of years ago) and I don't have any experience with foreign agencies except CIS (but CIS is not so "foreign" for Russia), so I don't know what to expext from these contracts, like many new members here.

[Edited at 2010-10-09 10:23 GMT]


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José Henrique Lamensdorf  Identity Verified
Brazil
Local time: 09:14
English to Portuguese
+ ...
Lawyers' salesmanship & discussing clauses Oct 9, 2010

On a not-so-sunny day, any translation agency will eventually hire a lawyer. Having been properly trained, that lawyer will sell them a legal prophylactics package, which includes a contract. They'll say, Unless you get each and every vendor of yours to sign this, I can't guarantee that I'll be able to help protecting your rights if anything goes wrong in the future.

Apparently lawyers get paid for writing contracts the same way we - translators - do, per word, though their rates should probably be much, much higher than ours. That should explain why these contracts are so obnoxioulsy wordy.


Then there is discussing clauses. The agency usually won't dare striking out a clause, no matter how reasonable it may be to do so, because in case of trouble this will justify the lawyer telling them to bite the bullet, and charging double to get the situation solved.

One obtrusively large (and messy) translation agency from NYC contacted me about a potentially high volume of certified/sworn translations for Brazil. Well, in my country there are specific laws governing such endeavors. So I took the trouble to read their leonine but sine qua non vendor agreement, and found umpteen specific points where it clashed with Brazilian laws (which I'm bound to, as a certified public translator in Brazil), rendering them unenforceable. Yet there was no severability clause there voiding any other clause where forbidden by law. So I wrote a long e-mail to the PM specifying these conflicts. Today's date will be posted by Proz beside this message. I was told that the agency's 'legal deparment' would be studying these points, and AFAIK it hasn't yet finished doing so... since November 2009!

On the other hand, a few weeks ago I got a long contract from a new client, which was so fair and well written, that I wouldn't change one single word there if I wrote it myself. I felt our business relationship was protected all around. So such contracts are not a completely lost cause.


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S. D.  Identity Verified
United States
Local time: 08:14
English to Japanese
I agree Oct 9, 2010

I agree with Tomas. I encountered this contract which will put my position in total danger when lawsuits happen. Fortunately, I read the contract carefully before I signed and asked the client for explanation. They explained to me but I needed the explanation in writing included in the contract as addendum. It took almost one month exchangig emails until I totally felt comfortable with their contract with new addendum, but it was worth it. I felt much better after that. I might be the only one who was asking the company to put the addendum in the contract but I don't care. Also, I can trust this company much more now because they worked hard also for me to be able to sign the contract by coming up with suggestions and addendum. I cannot sign on the contract that I cannot agree with. I do no know if other freelancers read the contracts or how carefully they read, but I do. I think it is worthwhile to do it.

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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 14:14
Member (2005)
English to Spanish
+ ...
TOPIC STARTER
Well done! Oct 10, 2010

spockally wrote:
I might be the only one who was asking the company to put the addendum in the contract but I don't care. Also, I can trust this company much more now because they worked hard also for me to be able to sign the contract by coming up with suggestions and addendum.

Indeed, well done! One should not sign anything that does not feel right!


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 14:14
Member (2005)
English to Spanish
+ ...
TOPIC STARTER
Company panic Oct 10, 2010

José Henrique Lamensdorf wrote:
On a not-so-sunny day, any translation agency will eventually hire a lawyer. Having been properly trained, that lawyer will sell them a legal prophylactics package, which includes a contract. They'll say, Unless you get each and every vendor of yours to sign this, I can't guarantee that I'll be able to help protecting your rights if anything goes wrong in the future.

Indeed this is what it looks like in the case of some contracts I am asked to sign. I often end up in a neverending (I mean that it is never brought to a successful end) discussion about whether they can or cannot change anything from the standard contract. Nevertheless, I will keep asking potential customers about the clauses I don't agree with. I prefer to let a customer go than being worried about the long-term consequences of what I sign!


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