Agency postponing payment until after the end-client has paid
Thread poster: Alexander Shanturin

Alexander Shanturin  Identity Verified
United Kingdom
Local time: 09:28
German to English
+ ...
Jul 19, 2019

Hello,

An agency owes me a hefty amount of money. They refer to the clause claiming that I'll be paid after the end client has cleared the payment.

The problem is, I have no contact with the end client, and according to the agency, the client has been postponing the payment for almost three weeks by now.

Does the clause about paying the translator only after the end-client has paid hold any legal power? They can postpone my payment indefinetely using this
... See more
Hello,

An agency owes me a hefty amount of money. They refer to the clause claiming that I'll be paid after the end client has cleared the payment.

The problem is, I have no contact with the end client, and according to the agency, the client has been postponing the payment for almost three weeks by now.

Does the clause about paying the translator only after the end-client has paid hold any legal power? They can postpone my payment indefinetely using this clause as I can't verify whether the end client has made the payment.

And what if the end-client, in fact, doesn't pay? Would I have any remedy against the agency in this case?

[Edited at 2019-07-19 11:19 GMT]
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IrinaN
United States
Local time: 04:28
English to Russian
+ ...
@Alexander Jul 19, 2019

What holds legal power is your signature. Sorry for pouring salt on your wound but signing a contract with such clause was a huge mistake.

The very idea of squeezing such clause into the contract does not make the agency look pretty and you have a good reason to be concerned. However, it's too early to lose hope as it may very well be true that the client didn't pay yet. If the agency is small and/or the project is big, possibly involving many translators, then this situation, thoug
... See more
What holds legal power is your signature. Sorry for pouring salt on your wound but signing a contract with such clause was a huge mistake.

The very idea of squeezing such clause into the contract does not make the agency look pretty and you have a good reason to be concerned. However, it's too early to lose hope as it may very well be true that the client didn't pay yet. If the agency is small and/or the project is big, possibly involving many translators, then this situation, though unpleasant and disappointing, and speaks volumes of the agency business practices, is not necessarily a dead end or an attempt to swindle. Sometimes sh... things happen and we find ourselves dealing with lousy business people. For a moment, the obvious fact that non-payment by the end client should not be your problem in any shape or form is beside the point since, unfortunately, you gave your approval to this condition.

I would give them a couple more weeks and then ask a legal advise regarding your rights in terms of obtaining proof of non-payment by demanding an official disclosure of the end client's name and any paperwork confirming agency's attempts to receive the payment, followed by a direct contact. I hope your agency is within reach and not on the other continent.

Are there any payment terms set in the contract at all? Are there time limits for any quality claims?

How well do you know the agency?
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Kay Denney
Joe France
Teresa Borges
IanDhu
 

Lincoln Hui  Identity Verified
Hong Kong
Local time: 17:28
Member
Chinese to English
+ ...
Pressure Jul 19, 2019

If you regularly work with them, decline any offer from them and make it very clear that the payment issue is the reason even though you are available and would love to accept it.

Depending on the situation, you could send them an email unilaterally extending the deadline to a certain, fixed date (let's say, 30 days from today). Politely say that this is non-negotiable and that you will escalate action after the new deadline passes, rain, shine or blizzard. Their client's non
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If you regularly work with them, decline any offer from them and make it very clear that the payment issue is the reason even though you are available and would love to accept it.

Depending on the situation, you could send them an email unilaterally extending the deadline to a certain, fixed date (let's say, 30 days from today). Politely say that this is non-negotiable and that you will escalate action after the new deadline passes, rain, shine or blizzard. Their client's nonpayment is not your problem.

Someone who doesn't want to pay will always find a way to dodge. But if they're at all a conscientious company, this gives them an opportunity to save face, and a fair amount of time to come up with the money if cash flow is indeed the issue.
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Wolfgang Schoene  Identity Verified
France
Local time: 11:28
English to German
+ ...
Agency postponing payment until after the end-client has paid Jul 19, 2019

Alexander Shanturin wrote:

Hello,

An agency owes me a hefty amount of money. They refer to the clause claiming that I'll be paid after the end client has cleared the payment.

The problem is, I have no contact with the end client, and according to the agency, the client has been postponing the payment for almost three weeks by now.

Does the clause about paying the translator only after the end-client has paid hold any legal power? They can postpone my payment indefinetely using this clause as I can't verify whether the end client has made the payment.

And what if the end-client, in fact, doesn't pay? Would I have any remedy against the agency in this case?

[Edited at 2019-07-19 03:57 GMT]


That used to be the rule when I was still living and working in Italy. So I asked customer, what if the end client does NOT pay? Am I not paid?
Such a clause may not be abusive, but reflects a poor image of the agency.


achisholm
 

Sheila Wilson  Identity Verified
Spain
Local time: 10:28
Member (2007)
English
+ ...
Certainly abusive Jul 19, 2019

Alexander Shanturin wrote:
An agency owes me a hefty amount of money. They refer to the clause claiming that I'll be paid after the end client has cleared the payment.


Does the clause about paying the translator only after the end-client has paid hold any legal power? They can postpone my payment indefinetely using this clause as I can't verify whether the end client has made the payment.


Wolfgang Schoene wrote:
Such a clause may not be abusive, but reflects a poor image of the agency.


I believe the clause is abusive. I once sued a client successfully in the French courts for a similar one - my client reckoned that if the teaching job got cancelled part-way through I only got paid if I did whatever other work for them that they threw my way. I had stupidly signed the contract but the judge said clauses that prevented payment for labour (job performed properly, of course) were abusive.

I like Lincoln's solution. It's good to give a client a little time and space once you've made it clear that you aren't going away. But it must clearly be a non-repeatable arrangement.


 

Alexander Shanturin  Identity Verified
United Kingdom
Local time: 09:28
German to English
+ ...
TOPIC STARTER
Thank you Jul 19, 2019

Thank you for your answers. Next monday I'm going to send the agency a request on status of the payment, if they keep postponing it or don't respond within 2 days I will set a hard deadline and escalate it from there.

 

Christine Andersen  Identity Verified
Denmark
Local time: 11:28
Member (2003)
Danish to English
+ ...
Not sure whether you can use the EU Late Payment Directive Jul 19, 2019

The UK is still in the EU, if only just... but I don´t know about the agency that owes you money.
So I am not sure whether this directive is any use to you.
https://ec.europa.eu/growth/smes/support/late-payment_en

Basically, you have no contract with the end client, and no control over them. Indeed, you may have signed a Non-Declaration Agreement that yo
... See more
The UK is still in the EU, if only just... but I don´t know about the agency that owes you money.
So I am not sure whether this directive is any use to you.
https://ec.europa.eu/growth/smes/support/late-payment_en

Basically, you have no contract with the end client, and no control over them. Indeed, you may have signed a Non-Declaration Agreement that you must not contact them.
So, as Sheila says, the clause may be abusive, and you are entitled to be paid for you work by the agency who consigned the work to you.

Read contracts carefully, and don´t assume that the worst scenarios won´t happen! If that is really the case, then the clauses should not be included in the first place.

I have just sent an NDA and a contract back to an agency with a couple of clauses crossed out, and an explanation that I cannot possibly cover all the indirect costs, loss of profits and reputation and what-have-you that just might result if I breached the agreement. I have indemnity insurance, but not that kind of cover, and as a one-person company, I don't have the assets either. Much bigger companies limit their liabilities to direct costs, so it is simply not realistic to sign a clause like that.

You are a business partner, but not a bank or a buffer for the client´s liquidity problems. You are in fact quite indispensable as a service provider to the agency. Without translators they could not run their business, so don't let them push you about!

Best of luck with the payment strategy - I hope you get paid without too much further hassle.
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Alexander Shanturin
Gareth Callagy
Kay Denney
DZiW
 

finnword1
United States
Local time: 05:28
English to Finnish
+ ...
They can't afford to pay you? Jul 20, 2019

Ask them if that is the case. You are entitled to know.

Jennifer Forbes
 

Michael Newton  Identity Verified
United States
Local time: 05:28
Member (2003)
Japanese to English
+ ...
Agency postponing payment Jul 21, 2019

These clauses, like charity, cover a multitude of sins.

Vadim Kadyrov
 

IanDhu  Identity Verified
France
Local time: 11:28
Member (2005)
French to English


Posted via
ProZ.com Mobile


Such a clause is actually wrongful Jul 21, 2019

Wolfgang Schoene wrote :

Such a clause may not be abusive,


I beg to differ: the usual commercial practice in France dissociates the end client from the agency, and if the agency fails to pay, I understand the law entitles the supplier (translator) to recover directly from the end client. Obviously, it is unwise to sign to such a clause in any event.


DZiW
Paul Malone
 

Thayenga  Identity Verified
Germany
Local time: 11:28
Member (2009)
English to German
+ ...
Your only client Jul 22, 2019

Alexander Shanturin wrote:
Next monday I'm going to send the agency a request on status of the payment, if they keep postponing it or don't respond within 2 days I will set a hard deadline and escalate it from there.


It's a sign of good will that you will allow the agency - your "direct" and only client - a little time to pay you. You have no dealings with their client, the end client, because it was the agency who ordered the translation from you without informing you that you can take jobs only from their end client. Therefore, the contract is between you and the agency.

That they tricked you into agreeing to such a clause is unethical and unworthy of any serious business. Without knowing the agency, I wouldn't be surprised if they ask you to sign a clause that holds you responsible for any accident which they might have at their office.

Much success!


 

Bernhard Sulzer  Identity Verified
United States
Local time: 05:28
Member (2006)
English to German
+ ...
Educate yourself before you start Jul 22, 2019

It seems we get a lot of questions from new translators who don't have basic information before they start working in this industry
A simple Google search for ""what's important to be a successful translator" yields plenty of stuff. Add "proz.com" behind it and you get important information collected for you here.

Hope it works out better for you next time.
Bernhard


 


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