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Agency T&C - would you accept this clause?
Thread poster: Nathalie Coutelle
Tony Keily
Tony Keily
Local time: 11:47
Italian to English
+ ...
My answer: Oct 18, 2016

No.

 
Giovanni Guarnieri MITI, MIL
Giovanni Guarnieri MITI, MIL  Identity Verified
United Kingdom
Local time: 10:47
Member (2004)
English to Italian
this... Oct 18, 2016

RobinB wrote:

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]


very good advice...


 
Dan Lucas
Dan Lucas  Identity Verified
United Kingdom
Local time: 10:47
Member (2014)
Japanese to English
It's certainly hard Oct 18, 2016

Chris S wrote:
I'm still not sure why our liability should be limited to the value of the job.

Personally, I agree. I think the freelancer has to compromise, to demonstrate that they are willing to share some of the risk. This is where the professional liability insurance can be useful. It provides a clear, independently verifiable cut-off point.

Of course, insurance costs money, but for a full-time professional it should not have a significant effect on profits.

Dan


 
Preston Decker
Preston Decker  Identity Verified
United States
Local time: 06:47
Chinese to English
Because you were not poisoned by the bean grower! Oct 18, 2016

Chris S wrote:

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]


A translation agency is, by definition, in the business of providing finished translations to their end clients, whereas the translator is merely providing an initial translation--the unprocessed beans if you will.

I have my own stable of direct clients, and if they wanted me to sign something like this I likely would, with a nice markup in the rate to cover my extra risk and insurance premiums. I would sign it because I have complete control of the quality process, and because my rates for direct clients are high enough to cover the extra reviews, proofreaders, etc. necessary to provide them with a properly TEPed translation.

A translation agency, on the other hand, is supposed to have their own quality control processes in place, of which the translator is merely a link in a chain. This is why I earn half what I do for direct clients when working with agencies, and this is why it is grossly unfair to ask translators to assume full liability (or major liability) for mistakes.

Or look at this from another perspective: why do agencies put these clauses in their contracts? It's because in the absence of evidence of gross negligence, most any judge would find the agency, not the translator, liable for damages. It's the same reason why the processing plant, not the farmer, would be liable for your poisoning.

Edit: I do agree that in the real world it's often necessary to divest oneself of logical/ethical arguments and do business. So I'm not against translators assuming some level of liability to gain an agency client (again, I often revise these to read that I accept liability up to 2-3000 USD), but this should be done as a necessary evil, not because there is a strong logical argument for the translator bearing major liability.



[Edited at 2016-10-18 16:31 GMT]

[Edited at 2016-10-18 16:32 GMT]


 
Lianne van de Ven
Lianne van de Ven  Identity Verified
United States
Local time: 06:47
Member (2008)
English to Dutch
+ ...
This sums it up! Oct 18, 2016

Preston Decker wrote:

A translation agency is, by definition, in the business of providing finished translations to their end clients, whereas the translator is merely providing an initial translation--the unprocessed beans if you will.



My liability has a short expiration period and does not exceed the amount of the original invoice for the job.

When asked to sign NDA's (which apparently come with tons of provisions these days that don't have anything to do with non-disclosure), I visibly delete such sections or amend them to my liking and then sign and notify clients of the changes.

Somewhat related, I also avoid working with agencies that seem to have no proofreaders in place ("we need you to deliver print-ready"), or I charge extra so I can pay for one myself. If big liabilities are obviously at stake, and an agency appears to be unaware or irresponsible, I don't work with them.


 
Heinrich Pesch
Heinrich Pesch  Identity Verified
Finland
Local time: 12:47
Member (2003)
Finnish to German
+ ...
I would not sign Oct 19, 2016

Nor would I even print out the document. In my experience agencies that let you sign long documents never send you jobs. There might be exceptions but I don't care.

 
Tom in London
Tom in London
United Kingdom
Local time: 10:47
Member (2008)
Italian to English
I agree with Tony Oct 19, 2016

Tony Keily wrote:

No.


I agree with Tony. There are too many agencies that dangle the prospect of work in front of the translator's nose, give them a sniff of it, and then demand that first of all, they must accept a whole series of legal obligations whose possible consequences are unforeseeable, but will always give the advantage to the agency. I NEVER work with agencies who take that approach.

Maybe it all comes from America where by now, you can't even leave the house without first consulting your lawyer and where the idea of people trusting one another seems to have gone out the window. This comes through very clearly in the tone and language of the comments posted by colleagues who are based in the US.

The US approach seems to be that because the agency that hires you is concerned that it might be sued by the end client, it finds itself forced, in turn, to hire lawyers to write NDAs that unload the liability on to the translator who, in turn, is forced to seek legal cover to protect themselves in the event of litigation.

"Great fleas have little fleas upon their backs to bite 'em,
And little fleas have lesser fleas, and so ad infinitum.
And the great fleas themselves, in turn, have greater fleas to go on,
While these again have greater still, and greater still, and so on."

[Edited at 2016-10-19 07:10 GMT]


 
Christine Andersen
Christine Andersen  Identity Verified
Denmark
Local time: 11:47
Member (2003)
Danish to English
+ ...
Never admit to anything... Oct 19, 2016

If there is any justification, you will be sued, whether you sign or not. You can take it from there, and act on the specific situation. Things are usually manageable when all the details are filled in, and actual damage weighed against the specific error.

If you admit a duty to accept undefined and unlimited liability, it will be followed up to the bitter end.

As long as an NDA commits you to normal, ethical non-disclosure of clients' documents and information, fine,
... See more
If there is any justification, you will be sued, whether you sign or not. You can take it from there, and act on the specific situation. Things are usually manageable when all the details are filled in, and actual damage weighed against the specific error.

If you admit a duty to accept undefined and unlimited liability, it will be followed up to the bitter end.

As long as an NDA commits you to normal, ethical non-disclosure of clients' documents and information, fine, but leave the threats and penalties and punishments out of it.

As Dan Lucas says, push for the changes you want to see.
Collapse


 
Christopher Schröder
Christopher Schröder
United Kingdom
Member (2011)
Swedish to English
+ ...
OMG Oct 19, 2016

Preston Decker wrote:

A translation agency is, by definition, in the business of providing finished translations to their end clients, whereas the translator is merely providing an initial translation



I completely disagree with this. I think it's *my* job to provide a finished translation. The agency may, if it wants, check that it is OK, but an agent does not by definition add value, an agent is simply someone who connects customer and supplier, who allows the translator to get on with translating without having to spend endless time on marketing.

I feel this reliance on "proofreading" is the root of most evil in the translation business today, encouraging poor-quality translators to do a half-arsed job for peanuts, with someone even less qualified and even less well paid then attempting to knock it into shape under time pressure, the end-product being a far cry from what a decent translator would/should have produced solo in the first place.

Now I'm not lumping you in with this, Preston, as my impression of you from this forum is of a very serious and intelligent translator, but that just makes a statement like this all the more worrying...

To my mind, a translator must take complete responsibility for her work, both morally and legally.


 
Tom in London
Tom in London
United Kingdom
Local time: 10:47
Member (2008)
Italian to English
The Golden Rule Oct 19, 2016

Christine Andersen wrote:

If there is any justification, you will be sued, whether you sign or not. You can take it from there, and act on the specific situation. Things are usually manageable when all the details are filled in, and actual damage weighed against the specific error.

If you admit a duty to accept undefined and unlimited liability, it will be followed up to the bitter end.

As long as an NDA commits you to normal, ethical non-disclosure of clients' documents and information, fine, but leave the threats and penalties and punishments out of it.

As Dan Lucas says, push for the changes you want to see.


The Golden Rule, as taught to me by a more experienced professional than I was, and who had been around the block many more times than I had:

NEVER ADMIT LIABILITY

[Edited at 2016-10-19 08:16 GMT]


 
Tom in London
Tom in London
United Kingdom
Local time: 10:47
Member (2008)
Italian to English
Finish the job you were paid to do Oct 19, 2016

Chris S wrote:

I think it's *my* job to provide a finished translation


There are not many absolute truths, but this is one.

If you go to the doctor for a blood analysis you don't expect her/him to tell you "Well...I kind of did the tests but I have no idea if I did them correctly or completely, and I can't be bothered to check. That will be £250".



[Edited at 2016-10-19 08:20 GMT]


 
Preston Decker
Preston Decker  Identity Verified
United States
Local time: 06:47
Chinese to English
Yes Oct 19, 2016

Tom in London wrote:

Tony Keily wrote:

No.



Maybe it all comes from America where by now, you can't even leave the house without first consulting your lawyer and where the idea of people trusting one another seems to have gone out the window. This comes through very clearly in the tone and language of the comments posted by colleagues who are based in the US.

The US approach seems to be that because the agency that hires you is concerned that it might be sued by the end client, it finds itself forced, in turn, to hire lawyers to write NDAs that unload the liability on to the translator who, in turn, is forced to seek legal cover to protect themselves in the event of litigation.



[Edited at 2016-10-19 07:10 GMT]


Very true unfortunately.


 
Lingua 5B
Lingua 5B  Identity Verified
Bosnia and Herzegovina
Local time: 11:47
Member (2009)
English to Croatian
+ ...
Comparisons. Oct 19, 2016

Chris S wrote:

I completely disagree with this. I think it's *my* job to provide a finished translation. The agency may, if it wants, check that it is OK, but an agent does not by definition add value, an agent is simply someone who connects customer and supplier, who allows the translator to get on with translating without having to spend endless time on marketing.


So a car dealer is not supposed to check the quality of the car, but just merely connect the buyer and the manufacturer? Or a clothing store managers should not check the quality of the clothes they are selling, but not manufacturing? In both of these cases they will sell items with certain brand names on them (not theirs). Do agencies sell our translations with our or their names on them?


 
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