| Pages in topic: < [1 2 3] > | Agency T&C - would you accept this clause? Thread poster: Nathalie Coutelle
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| I would refuse to sign | Oct 17, 2016 |
This looks very similar to a clause I was asked to sign for an agency I had done a lot of work for, when they started collaborating with a big group beginning with L.
I refused. At first the PMs said that meant we would have to part company, but I stood my ground - then they would have to do without me! Finally the director said I could carry on working with them anyway, on the strength of our previous business relations.
I have professional indemnity insurance as part ... See more This looks very similar to a clause I was asked to sign for an agency I had done a lot of work for, when they started collaborating with a big group beginning with L.
I refused. At first the PMs said that meant we would have to part company, but I stood my ground - then they would have to do without me! Finally the director said I could carry on working with them anyway, on the strength of our previous business relations.
I have professional indemnity insurance as part of a package covering theft, fire, illness and computer problems among other things, and it covers work for clients in Europe. Of course I exercise due diligence about proofreading, but I know I make mistakes. I catch most, and I have caught other people's mistakes when checking their work, but nobody is perfect... Something might just slip through.
Most of the clauses I have translated over the years limit liability to direct damage, certainly not "whether direct or indirect ... or otherwise", which I take to mean just about anything the client decides it means.
No thanks, I would want something more clearly defined before I would sign. ▲ Collapse
| | | | Samuel Murray 
Netherlands
Local time: 09:19
Member (2006)
English to Afrikaans
+ ...
Nathalie Coutelle wrote:
The Translator shall defend, hold harmless and fully indemnify XXX against any loss ... claims, costs, liabilities, damages and expenses, whether direct, indirect, economic, financial, consequential or otherwise, suffered or incurred by XXX or any XXXX clients arising from any wilful default, negligent, wrongful or dishonest (including
fraudulent) act or omission by the Translator or any breach by the Translator of any of the provisions of this Agreement.
To defend, hold harmless and indemnify costs a lot of money. A practically unlimited amount of money, in fact. If you don't have that kind of money, they you can't sign this in good faith. Some might say, "you don't intend to breach the agreement, so you're safe", but I say, why on earth take this huge risk? Just delete this entire clause, sign in the margin, and tell the client that unfortunately you're unable to offer indemnification (and if the client asks why, tell him that as a freelance translator you don't have the financial resources).
Chris S wrote:
I don't think it's unreasonable. I would expect that kind of liability even if I hadn't signed an agreement setting it out.
No, in the absence of such a clause, you are only liable for costs that a court/judge thinks is reasonable.
If you sign this clause, then you're liable for much, much more. Defend: the onus is on you to prove both your and your client's innocence or non-involvement in any presumed breach. Hold harmless: you promise to pay for everything that the client would otherwise have had to pay for during the investigation or suit. Even if it turns out that you're innocent, and even if a court/judge rules that you should get your money back (from whom?), you still would have had to put up the cash initially to cover your promise in this clause that the client would never have to pay a cent. Indemnify: even if it turns out that you are innocent and that the agency is at fault, and even if a court/judge rules that the agency has to pay something to the end-client, then you promise to pay that money anyway.
There is absolutely nothing "standard" about any of this.
[Edited at 2016-10-17 22:33 GMT]
| | | | Nathalie Coutelle
United Kingdom
Local time: 08:19
Member (2008)
English to French
+ ...
TOPIC STARTER | Thanks a lot | Oct 17, 2016 |
Thanks a lot to everybody for their valuable input!
Much appreciated!
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Tomás Cano Binder, CT wrote: I would (and have several times in the past) ask for an amendment whereby any liability on your part would be limited to the value of the order or, if you are very generous indeed, twice the value or the order. http://www.proz.com/utility/proz_store_image.php?id=232 We are only one link in the end customer's production chain, and should not bear the whole liability if something really bad happens.
Yes, I frequently do this too, and should have mentioned it above--it can be a great way to find a middle ground, assuming the client is OK with revisions (which many larger companies seem not to be).
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| Limited liability | Oct 18, 2016 |
I agree with the colleagues who recommended capping your liability.
It is not unusual for agencies to push clauses like this, but I always explained to them the risk was not worth it. So, to reassure them I was not trying to avoid reasonable liability, I limited my liability to the value of orders from them in the last 6 or 12 months (depending on the client). A side note: agencies that tried to make me sign clauses like this usually send one or two jobs per year...
Eve... See more I agree with the colleagues who recommended capping your liability.
It is not unusual for agencies to push clauses like this, but I always explained to them the risk was not worth it. So, to reassure them I was not trying to avoid reasonable liability, I limited my liability to the value of orders from them in the last 6 or 12 months (depending on the client). A side note: agencies that tried to make me sign clauses like this usually send one or two jobs per year...
Even limiting it just to the value of the order wouldn't be unusual. I translated numerous contracts for large organizations that limited the service provider's liability to the value of the invoice (even in cases where the potential damage could be really big). ▲ Collapse
| | | | | Such a clause is not unusual! | Oct 18, 2016 |
I have seen it a number of times from larger agencies and I have never been able to negotiate a removal of the clause, so many translators must either not read it, not understand what this may imply or think that it won't happen to them. It can be completely out of the translators hands, if the customer should decide there is a crucial error in the translation - and everyone can make mistakes, even insurance companies will evaluate whether they have to pay out or not...
I just would... See more I have seen it a number of times from larger agencies and I have never been able to negotiate a removal of the clause, so many translators must either not read it, not understand what this may imply or think that it won't happen to them. It can be completely out of the translators hands, if the customer should decide there is a crucial error in the translation - and everyone can make mistakes, even insurance companies will evaluate whether they have to pay out or not...
I just wouldn't want to go there at all.
And if more translators rejected full liability then agencies would be less likely to ask for it... its business, they try to get the best deal for themselves and translators should do the same.
[Edited at 2016-10-18 05:59 GMT] ▲ Collapse
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Chris S wrote:
I don't think it's unreasonable. I would expect that kind of liability even if I hadn't signed an agreement setting it out.
So you are pretty wealthy then?
| | | | Dan Lucas
United Kingdom
Local time: 08:19
Member (2014)
Japanese to English
| This is the key: stand your ground | Oct 18, 2016 |
Gabriele Demuth wrote:
And if more translators rejected full liability then agencies would be less likely to ask for it... its business, they try to get the best deal for themselves and translators should do the same.
This is the core issue. Until more high-quality, in-demand translators start rejecting these one-sided agreements - and making it clear why they reject them - some agencies will continue to try to foist them on freelancers.
If enough freelancers say no, at some point other agencies are going to realise the way the wind is blowing and actually make a virtue of not having such clauses. Instead of saying "You should work with us, and you need to sign all this and no, it's not negotiable", the smarter agencies may well say "We'd love you to work with us and, oh, we limit your liability to 1,000 euro."
Everybody: PUSH BACK. Be the change you want to see in this industry.
Regards
Dan
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Lingua 5B
Bosnia and Herzegovina
Local time: 09:19
Member (2009)
English to Croatian
+ ...
| Full liability. | Oct 18, 2016 |
Gabriele Demuth wrote:
I have seen it a number of times from larger agencies and I have never been able to negotiate a removal of the clause, so many translators must either not read it, not understand what this may imply or think that it won't happen to them. It can be completely out of the translators hands, if the customer should decide there is a crucial error in the translation - and everyone can make mistakes, even insurance companies will evaluate whether they have to pay out or not...
I just wouldn't want to go there at all.
And if more translators rejected full liability then agencies would be less likely to ask for it... its business, they try to get the best deal for themselves and translators should do the same.
[Edited at 2016-10-18 05:59 GMT]
Wait a second. I am managing my own office, paying for my own electricity, premises, facilities, equipment, software, hardware, taxes, full logistic support, etc. Do not have any kind of support from the agency, plus saving them a great deal of money (see the first sentence). Then I am also asked to work at cheap rates, which again pertains to saving money for them.
So the agency doesn't share my costs but would like to share the liability? If they want me to take the full liability, may they connect me with the direct client, and then step out of the way.
| | | | Nathalie Coutelle
United Kingdom
Local time: 08:19
Member (2008)
English to French
+ ...
TOPIC STARTER | Another clause in the contract | Oct 18, 2016 |
Thanks all for your thoughts...
I reread the whole contract and, actually, there is another clause in the contract that would limit my liability but I still think it is very blurred given the fact that the clause 8.2 exist.
Here is the other clause :
Subject to Clause 8.2 (the clause I put in my original post), in the event that the Translator commits a breach of this Agreement or a Project and fails to complete a Project or series of Projects in a timely... See more Thanks all for your thoughts...
I reread the whole contract and, actually, there is another clause in the contract that would limit my liability but I still think it is very blurred given the fact that the clause 8.2 exist.
Here is the other clause :
Subject to Clause 8.2 (the clause I put in my original post), in the event that the Translator commits a breach of this Agreement or a Project and fails to complete a Project or series of Projects in a timely manner
or to the standards required in respect of that Project or series of Projects then the
Translator’s aggregate liability to XXX in respect of such breach shall be limited to direct
losses up to the value of the project.
This clause is more reasonable but 8.2 (with unlimited liability) is also part of the contract.
Please share your thought! They are much welcome. ▲ Collapse
| | | | | Push back... | Oct 18, 2016 |
as Dan said!
Lately I have experienced agencies telling me:
"oh, yes the repetitions are not paid for, I believe we don't get paid for them by the client" - arrrrgh! My agreement with the agency was that repetitions were paid at a certain rate, they always paid for them and then they try this?! It was only worth Euro 6.80, but I couldn't let them push me around.
After reminding an agency for late payment I was told, "your invoice has been accepted and is b... See more as Dan said!
Lately I have experienced agencies telling me:
"oh, yes the repetitions are not paid for, I believe we don't get paid for them by the client" - arrrrgh! My agreement with the agency was that repetitions were paid at a certain rate, they always paid for them and then they try this?! It was only worth Euro 6.80, but I couldn't let them push me around.
After reminding an agency for late payment I was told, "your invoice has been accepted and is being processed, as it was a XXX job, it was sent to XXX and they have a payment term of 45 days, we made appropriate changes to your invoice, I hope you don't mind, please contact XXX as below" - what!!? Non of this was communicated to me at the time, my invoice states a payment term of 30 days and this was accepted by the agency, the agency is who my contract is with and this is who I will chase for the invoice - really, how can they just pass my invoices/their debt on?
[Edited at 2016-10-18 08:34 GMT] ▲ Collapse
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Nathalie Coutelle wrote:
Thanks all for your thoughts...
I reread the whole contract and, actually, there is another clause in the contract that would limit my liability but I still think it is very blurred given the fact that the clause 8.2 exist.
Here is the other clause :
Subject to Clause 8.2 (the clause I put in my original post), in the event that the Translator commits a breach of this Agreement or a Project and fails to complete a Project or series of Projects in a timely manner
or to the standards required in respect of that Project or series of Projects then the
Translator’s aggregate liability to XXX in respect of such breach shall be limited to direct
losses up to the value of the project.
This clause is more reasonable but 8.2 (with unlimited liability) is also part of the contract.
Please share your thought! They are much welcome.
I feel this does only relate to late delivery and substandard work, however, should out of this arise a real problem that could be interpreted as very costly, e.g. missed deadlines and loss of revenue of a multinational company, then they may refer to the more powerful clause - just my thoughts.
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Samuel Murray
Netherlands
Local time: 09:19
Member (2006)
English to Afrikaans
+ ...
Nathalie Coutelle wrote:
Subject to Clause 8.2 (the clause I put in my original post), in the event that the Translator commits a breach of this Agreement ... then the Translator’s aggregate liability to XXX in respect of such breach shall be limited to direct losses up to the value of the project.
The client's lawyer might have meant "up to the value of the invoice", but that's not what it currently says. The project's value is more than just the amount on the translator's invoice.
Even if the client were to agree to change this to "value of the invoice", it still doesn't really limit your liability w.r.t. the other things mentioned in clause 8.2, because this clause relates only to costs relating to an actual breach of the agreement (as well as a few things not mentioned in clause 8.2), whereas clause 8.2 states that you are liable for other things as well, which are not mentioned here.
There is simply no good reason to offer to defend and/or to hold harmless and/or to indemnify the client. The translator is still liable to the client (in the event of things that normally trigger liability) even if the translator does not agree to that particular clause.
[Another oddity which the client's lawyer might want to rethink is the fact that clause 8.2 is not subject to this clause, but that this clause is subject to clause 8.2. That does not really make sense.]
[Edited at 2016-10-18 09:06 GMT]
| | | | RobinB
United States
Local time: 02:19
German to English
| Agree 100% with Dan | Oct 18, 2016 |
And you should also try and get hold of his very instructive and informative article on this very topic in the September/October 2016 edition of the ITI Bulletin.
One thing to remember about E&O liability policies is that it's normally the case that the insurer won't pay up if you actually admit liability. So if a client makes a liability claim against you, you have to pass it on to your insurer as it stands, no matter how much pressure your client is putting on you.
On... See more And you should also try and get hold of his very instructive and informative article on this very topic in the September/October 2016 edition of the ITI Bulletin.
One thing to remember about E&O liability policies is that it's normally the case that the insurer won't pay up if you actually admit liability. So if a client makes a liability claim against you, you have to pass it on to your insurer as it stands, no matter how much pressure your client is putting on you.
On a general note, I'm aware that clauses like this are now widespread among Anglosphere-based translation agencies, although my feeling is that certain of these clauses would be hard to enforce in the courts of a civil law country (conversely, the common "contractual penalty" clauses in many civil law contracts would be difficult to enforce in common law courts).
Just because they're widespread doesn't mean they're acceptable: they shift the balance of liability critically away from the agency, and impose an excessive liability risk on the translator. As Dan says, check out the agencies' own T&Cs. Do they accept the same level of liability in respect of their own clients? (short answer: unlikely).
The bottom line: Only accept a clause like this if you yourself are a limited liability company. If (like most independent translators) you're self-employed with unlimited liability (meaning that your clients - or your clients' insurers - can take away your car, your house, your investments and savings, your pension assets, etc.), then don't.
What you can do, of course, is tell the agency you can't accept this clause unless they acknowledge in writing that any and all claims under the business relationship are limited to your billable value of the translation project in question.
[Edited at 2016-10-18 09:09 GMT] ▲ Collapse
| | | | | @Citizen Smith | Oct 18, 2016 |
Dan Lucas wrote:
Everybody: PUSH BACK. Be the change you want to see in this industry.
It's hard for the little (wo)man.
I've butted my head several times against one mega-agency over the years as it's gone around snapping up my old mom-and-pop agency customers, and I've never won the SLA battle.
In the most recent case, though, one end-customer insisted on continuing to work with me and I've been able to do so without having to use the agency's CAT or other systems. So there is some flexibility in there, but only once you've got their balls in a vice.
This thread has definitely made me think, but I'm still not sure why our liability should be limited to the value of the job. If I were poisoned by a can of beans I'd expect Sainsbury's to give me more than just my 55p back.
[Edited at 2016-10-18 09:09 GMT]
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