Service Agreement: Before or After!?
Thread poster: Gopinath Jambulingam

Gopinath Jambulingam  Identity Verified
India
Local time: 12:51
Member (2013)
Tamil to English
+ ...
Apr 7, 2016

An animated ebook publisher, based in Puduchery approached us for translation and review of stories intended for kids in various Indian languages.

Initially the client started with review jobs, and settled payments promptly, though not through a proper channel, but through an individual account. Then, the client wanted us to do Bengali translation jobs, after being satisfied with free sample translation. We also delivered translation of 4 stories along with Invoice. Then the project coordinator called me, and asked if i can sign copyright papers pertaining to the translation. I readily agreed without a smell of suspicion.

Then came an email with an attachment entitled, 'Service Agreement'. The four page agreement was literally unilateral serving the interests of the client exclusively. Though, i was dissatisfied with the overall content of the SA, two clauses are worth discussing here, that got me infuriated.

Client's Version: Indemnification. Contractor will indemnify, defend, protect and hold harmless XXXXXX, its agents, officers, directors, employees and other independent contractors from and against any causes of action, claims, damages, liabilities, awards, and losses (including attorney’s fees) incurred by any of them in connection with any claim related to or arising from Contractor’s act, error, or omission.

Suffix suggested to the above: However, Contractor’s liability is limited to the Invoiced Amount for the particular job.

Client's Version: Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of India and subject to the Jurisdiction of the Courts in Puducherry (India) only.

Amendment Sought: Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of India and subject to the Jurisdiction of the Courts in Puducherry and Tamil Nadu (Chennai) [India] only.(Note: The distance between Chennai and Puducherry is around 175 kms by road.)

The client categorically rejected the suggested addition/modifications, despite the fact that the translation jobs were executed well before the proposal of Service Agreement. But, the client was continuously demanding my signature, so that, they can release my payment.

I replied the client that i would not be submissive for such blackmails, and without incorporation of the suggested modifications, i cannot sign the SA. Then came the reply from client that she will have to drop down the translations, if i chose not to sign the SA. (meaning: no payment). I was taken aback as to what kind of business ethics that this company is following!!

I repeatedly asked the client, why could not they present the SA, and got it signed by me, before placing the translation jobs on me. The client made a casual reply that "I should have done it; but i am sorry for what has happened." To cover up the mess caused by her, the immediate supervisor of the Project Coordinator, called me the next day, and without any shame, she made a suggestion that if i am (translation agency) not willing to sign the SA, then let the Bengali translator sign the SA. I rejected this suggestion, indicating that, i can only get the signature of the translator, and that neither his name or his address will be revealed in the SA., which she rejected. The cat came out of the bag ultimately. And, her malicious intention to establish direct dealing with the LSP for future jobs, thereby eliminating our company got exposed!!

Besides, the transaction is not worth of lakhs or crores, but something less than Rs.5000/-. Assuming without admitting, in case of any error(s) in the translation or misuse of the content or any other violations (as against the SA) by the translator, whether it is really worth for a translation agency like us to get implicated in legal proceedings, necessitating 175 kms travel from our office? We hardly get 30% of the invoiced amount as our margin, and do we really deserve this kind of troubles or harassment!!

I am sure that any agreement should be bilateral and should come to effect only after both the parties are in agreement with all the clauses of the agreement, and from the day it is signed. Certainly the agreement will lack legality for matters that are carried out prior to its execution.

My intention of this posting is to create an awareness among the translators and agencies not to get carried away by such fraudulent companies. Beware of the content of any agreement before you sign.

I also seek your support if i am right in my stand. Also, I would like to welcome valuable suggestions from industry experts, that would help me bell this audacious and unethical cat, and recover the withheld amount without having to undergo a cumbersome legal battle.

Regards
Gopinath Jambulingam
Gem Translators, Chennai - 600 071.


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Angela Rimmer  Identity Verified
United Kingdom
Local time: 08:21
Member (2014)
German to English
+ ...
Not worth it Apr 7, 2016

Here's what I understood:

The client requested a translation and it was delivered. The client then wanted you to sign a service agreement, which you cannot do because you do not agree with all of the terms. Since your suggested amendments were rejected, this negotiation cannot proceed because you will not sign without changes and they will not make the changes. Now the client says they will not pay for the translation unless you sign.

The translation is only worth 5000 rupees. To pursue the money in court, you would have to travel 175 km -- plus of course there is the cost of court fees etc.

In my opinion you will save yourself a lot of headache and hassle and time if you simply forget about this client and do not seek the money. You should also try to warn any other colleagues about this client. But I would not waste any more time on the client, especially if you are not losing too much to pay your Bengali translator without receiving the payment from your client.

(But please do pay your Bengali translator!!!)


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Gopinath Jambulingam  Identity Verified
India
Local time: 12:51
Member (2013)
Tamil to English
+ ...
TOPIC STARTER
A small correction! Apr 7, 2016

Angela Rimmer wrote:

Here's what I understood:

The client requested a translation and it was delivered. The client then wanted you to sign a service agreement, which you cannot do because you do not agree with all of the terms. Since your suggested amendments were rejected, this negotiation cannot proceed because you will not sign without changes and they will not make the changes. Now the client says they will not pay for the translation unless you sign.

The translation is only worth 5000 rupees. To pursue the money in court, you would have to travel 175 km -- plus of course there is the cost of court fees etc.

In my opinion you will save yourself a lot of headache and hassle and time if you simply forget about this client and do not seek the money. You should also try to warn any other colleagues about this client. But I would not waste any more time on the client, especially if you are not losing too much to pay your Bengali translator without receiving the payment from your client.

(But please do pay your Bengali translator!!!)


Hi Angela,

Thanks for your clear understanding of the situation and a clear cut decision as to how it is supposed to be.

However, i would want you to correct one misunderstanding that, as of now (because i did not sign the Service Agreement) the court jurisdiction is not Puducherry. I can file a suit against the company at Chennai court and make them travel down 175 kms for the legal battle. There is 50:50 chance that the client may come down, if served with a legal notice for non payment.

Further, i would pay my Bengali Translator for sure.

Do you have anything to say under these circumstances?


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Angela Rimmer  Identity Verified
United Kingdom
Local time: 08:21
Member (2014)
German to English
+ ...
You are the better judge Apr 7, 2016

I have zero experience with how things work in India, so I am sure you are the better judge of what can be expected there.

Regardless of who has to travel where, you should weigh it up like this: if it will cost you a significant amount of money, time and trouble to pursue the client, then it may not be worth pursuing at all.

If you were in the UK, I would tell you that it is relatively cheap to file a court case against the client, and if the court finds in your favour, then technically the client would pay what they owe you plus the court fees. Although in practice, the payment is not often enforced so if the client is really very dodgy then you still might not get your money.

But I don't know about India, sorry!

[Edited at 2016-04-07 09:03 GMT]


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Kuochoe Nikoi  Identity Verified
Ghana
Local time: 07:21
Japanese to English
File and forget Apr 7, 2016

Gopinath Jambulingam wrote:

However, i would want you to correct one misunderstanding that, as of now (because i did not sign the Service Agreement) the court jurisdiction is not Puducherry. I can file a suit against the company at Chennai court and make them travel down 175 kms for the legal battle. There is 50:50 chance that the client may come down, if served with a legal notice for non payment.

Do you have anything to say under these circumstances?

File the suit against them, but don't pursue it too hard. Not filing at all means they definitely get away with it, which just sticks in my craw somehow. If they don't come down to defend themselves the court will probably find in your favour, but that doesn't mean the client will pay. So file the suit and get on with your life.


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Samuel Murray  Identity Verified
Netherlands
Local time: 09:21
Member (2006)
English to Afrikaans
+ ...
PMs often forget these details, and assume it's okay Apr 7, 2016

Gopinath Jambulingam wrote:
I repeatedly asked the client, why could not they present the SA, and got it signed by me, before placing the translation jobs on me. The client made a casual reply that "I should have done it; but i am sorry for what has happened."


Perhaps the contract existed before you started working for them, or perhaps they now have a business partner that requires such a contract to be signed.

Either way, PMs and clients typically forget to send contracts unless you specifically ask for them. In addition, PMs and clients often assume that anyone would be willing to sign a "standard contract", or that all service providers are aware of their special registration requirements. This is why it is important to ask for these things at the beginning of the business relationship.

I recall working for a local government client who, when it came to payment, told me that I must register as a service provider at their main office, in person, before I could get paid. She just assumed that anyone working as a contractor for a government department would know that you can't get paid without having completed official registration (in fact, she just assumed that I would register myself after accepting the job). The registration procedure turned out to be so onerous that I almost decided to forgo payment... but I had subcontractors to pay.


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Angela Rimmer  Identity Verified
United Kingdom
Local time: 08:21
Member (2014)
German to English
+ ...
Don't let the principle of the matter cloud your judgment Apr 7, 2016

TransAfrique wrote:

File the suit against them, but don't pursue it too hard. Not filing at all means they definitely get away with it, which just sticks in my craw somehow. If they don't come down to defend themselves the court will probably find in your favour, but that doesn't mean the client will pay. So file the suit and get on with your life.


I might agree with this, but only if it is likely that the client would pay if sued. The amount owed is so small, think of it this way: if it costs 5000 rupees to file a suit and the translation costs 5000 rupees to begin with, then if the client doesn't pay, the OP will have instantly doubled his losses. That's clearly a poor business outcome.

Don't make it personal by thinking about it as "Letting them get away with it" -- when the amount of money is so small, you may end up essentially cutting off your nose to spite your face. Who really wins in that situation? Not you.


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José Henrique Lamensdorf  Identity Verified
Brazil
Local time: 04:21
English to Portuguese
+ ...
Copyright Apr 7, 2016

[quote]Gopinath Jambulingam wrote (JHL emphasis here):

The client categorically rejected the suggested addition/modifications, despite the fact that the translation jobs were executed well before the proposal of Service Agreement. But, the client was continuously demanding my signature, so that, they can release my payment.

I replied the client that i would not be submissive for such blackmails, and without incorporation of the suggested modifications, i cannot sign the SA. Then came the reply from client that she will have to drop down the translations, if i chose not to sign the SA. (meaning: no payment). I was taken aback as to what kind of business ethics that this company is following!!

I repeatedly asked the client, why could not they present the SA, and got it signed by me, before placing the translation jobs on me. The client made a casual reply that "I should have done it; but i am sorry for what has happened."

Apologies won't cut it. Since your client admittedly made the mistake, tell them that you'll bite the bullet, and (since the amount involved is apparently not so significant), you'll cancel your invoice, and they should completely relinquish from using your translation or any part thereof, otherwise you'll sue them big $$$ for copyright infringement.

The point is, if your translation is any good, it should be very difficult for them to get another one that will be just as good, and that at the same time can't be argued as a cosmetically edited version of yours.


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Sheila Wilson  Identity Verified
Spain
Local time: 08:21
Member (2007)
English
+ ...
Great idea Apr 7, 2016

José Henrique Lamensdorf wrote:
Since your client admittedly made the mistake, tell them that you'll bite the bullet, and (since the amount involved is apparently not so significant), you'll cancel your invoice, and they should completely relinquish from using your translation or any part thereof, otherwise you'll sue them big $$$ for copyright infringement.

The point is, if your translation is any good, it should be very difficult for them to get another one that will be just as good, and that at the same time can't be argued as a cosmetically edited version of yours.


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Gopinath Jambulingam  Identity Verified
India
Local time: 12:51
Member (2013)
Tamil to English
+ ...
TOPIC STARTER
I see this in different perspective. Apr 7, 2016

Samuel Murray wrote:

Gopinath Jambulingam wrote:
I repeatedly asked the client, why could not they present the SA, and got it signed by me, before placing the translation jobs on me. The client made a casual reply that "I should have done it; but i am sorry for what has happened."


Perhaps the contract existed before you started working for them, or perhaps they now have a business partner that requires such a contract to be signed.

Either way, PMs and clients typically forget to send contracts unless you specifically ask for them. In addition, PMs and clients often assume that anyone would be willing to sign a "standard contract", or that all service providers are aware of their special registration requirements. This is why it is important to ask for these things at the beginning of the business relationship.

I recall working for a local government client who, when it came to payment, told me that I must register as a service provider at their main office, in person, before I could get paid. She just assumed that anyone working as a contractor for a government department would know that you can't get paid without having completed official registration (in fact, she just assumed that I would register myself after accepting the job). The registration procedure turned out to be so onerous that I almost decided to forgo payment... but I had subcontractors to pay.


[Either way, PMs and clients typically forget to send contracts unless you specifically ask for them. In addition, PMs and clients often assume that anyone would be willing to sign a "standard contract", or that all service providers are aware of their special registration requirements. This is why it is important to ask for these things at the beginning of the business relationship.]

Hi Samuel,

There is another interesting point to it. Client is emphasizing the court jurisdiction as Puducherry, where she has her office. The distance between us is 175 kms. Whereas, If the client wants a Bengali Translator, whose native place is Kolkata in West Bengal that is 1860 kms far away, to sign the Service Agreement, do you think that he/she will accept it? If they accept it, at what cost? The translation jobs are worth of few thousands only! Travelling 3-4 times to Puduchery will eat up all that they earned from this client. Not to mention about the legal expenses!

The PM appears to have had a bitter experience with the refusal of Bengali translators to sign the SA, as it is, before she approached me. And, for that is the reason she laid a trap, and now thinks that i am at her mercy. The PM's act is in all probability a deliberate act rather than a memory slip.


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Gabriele Demuth  Identity Verified
United Kingdom
Local time: 08:21
Member (2014)
English to German
Their fault Apr 7, 2016

You could suggest your amended agreement for future jobs, but really, it is not your fault if they forget to do their job properly, they will have to deal with that themselves.

They need to pay your invoices.


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Soonthon LUPKITARO(Ph.D.)  Identity Verified
Thailand
Local time: 14:21
Member (2004)
English to Thai
+ ...
My case Aug 27, 2016

José Henrique Lamensdorf wrote:

Apologies won't cut it. Since your client admittedly made the mistake, tell them that you'll bite the bullet, and (since the amount involved is apparently not so significant), you'll cancel your invoice, and they should completely relinquish from using your translation or any part thereof, otherwise you'll sue them big $$$ for copyright infringement.

The point is, if your translation is any good, it should be very difficult for them to get another one that will be just as good, and that at the same time can't be argued as a cosmetically edited version of yours.


In my recent job, the client who is a translation agency in Florida, USA, said subjectively that my translation of personal registration was in poor quality. They modified the layout, formats, wordings and sent to the final user without paying me. This is absolutely and categorically violating the copyright laws that protect the freelance translators.

Soonthon L.


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