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clause in an agreement, please read and comment
Thread poster: Monika M
Nicholas Stedman
Nicholas Stedman  Identity Verified
Italy
Local time: 10:11
French to English
A limit to your liability Aug 5, 2010

I agree with John and think it a bad idea to sign any contract that does not specify the limit of your liability (i.e. 1-3 times the value of your translation). It's true that it seems unlikely at the moment that this contract may be enforced in Poland, but international agreements change rapidly and in the future you may forget what you have signed before.


[Edited at 2010-08-05 05:40 GMT]


 
Charlie Bavington
Charlie Bavington  Identity Verified
Local time: 09:11
French to English
Contradiction? Aug 5, 2010

Andreas Baranowski wrote:
If it’s a good client, I would sign.


Just a thought, and not to disagree with the idea that it is just boilerplate, but if it were truly a "good" client, then:
a) would they really just sling out standard contracts with no thought as to their suitability, and
b) would they really object if you asked for/suggested changes to make the translator slightly less liable for every conceivable adverse event in the known universe.

In either case, I see no reason to sign it as it stands, good client or otherwise.


 
Anne Maclennan
Anne Maclennan  Identity Verified
Local time: 10:11
Member (2010)
German to English
+ ...
Take Care! Aug 5, 2010

Hi,
I'd be very cautious about signing this; maybe they would find it difficult to enforce in Poland, but they are more powerful than you are.


 
Samuel Murray
Samuel Murray  Identity Verified
Netherlands
Local time: 10:11
Member (2006)
English to Afrikaans
+ ...
What it means Aug 5, 2010

Monika M wrote:
The Contractor agrees at all times to fully indemnify and hold harmless..


I had always assumed that one can understand this phraseology at face value, but I have now googled for "fully indemnify and hold harmless" and it turns out that the clause has a legal meaning which is in fact quite illogical.

To my mind, one can only release a person from an obligation if you are the one who has given him that obligation in the first place, or if you have received authorisation for it from whoever gave the obligation. So I thought it is obvious that if I hold someone harmless for something, it would be limited to that which I myself had obligated that person to do.

But apparently in this clause "to hold harmless" in a legal context basically means "to assume all liability for", regardless of whether the thing you are holding the person harmless for had originated from yourself or from a party over which you have no control and from whom you have no authorisation to cancel an obligation.

What this means is that this is one of the most unfair clauses in any agreement with a freelancer, no matter how "standard" the lawyers claim the clause is.

The argument that the client is in American and you are in some other country doesn't fly, because the contract allows the client to get a judgment against you even if you're not present, and one day in future, when you're on holiday in America, or on a transit flight to one of the states occupied by American forces, when you step off the airplane and present your passport to the customs official, a little message will come up on his screen telling him that there is an oustanding judgment against you, and you don't want that to happen. The attitude "I'm too far away for this to hurt me, so I'll agree to be hurt" is poor business practice.


 
Pablo Bouvier
Pablo Bouvier  Identity Verified
Local time: 10:11
German to Spanish
+ ...
clause in an agreement, please read and comment Aug 5, 2010

Monika M wrote:

Hi, would you sign an agreement with such a clause:

"The Contractor agrees at all times to fully indemnify and hold harmless, the Company, its officers, directors,
agents, employees, successors, assigns and representatives of and from any and all liability for claims, damages,
losses, costs, expenses and payments, including but not limited to (a) interest, penalties and legal fees, should the
Company be assessed by the Internal Revenue Service, or any other authority or agency and required to pay
statutory remittances, payments, penalties, interest and legal fees as a result of receipt by the Contractor of the
fees provided by this Agreement; and (b) any act, error, or omission of Company, its employees, or
representatives in the course of their performance under this Agreement; and (c) any claim whatsoever brought
by any person involved in connection with Contractor's services under this Agreement.."

What do you think?

MM


Just say no to it or reformulate the clause in your own interest and send it back.
I am sorry, but such "american clauses" makes me laugh, even I have seen similar clauses from an austrian translation agency. As we say in Spain: "En todas partes cuecen habas"...


 
Jennifer Forbes
Jennifer Forbes  Identity Verified
Local time: 09:11
French to English
+ ...
In memoriam
Don't sign! Aug 5, 2010

The clause is outrageous. Either delete it from the contract (signing your deletion) and then sign and date the contract as amended, or don't sign it at all.
No client can be worth the immense risk it implies, surely?
Best wishes,
Jenny


 
John Fossey
John Fossey  Identity Verified
Canada
Local time: 05:11
Member (2008)
French to English
+ ...
Boilerplate meets boilerplate Aug 5, 2010

Andreas Baranowski wrote:

Sounds like a boilerplate agreement to me.


The advantage of preparing your own liability limitation clause is that when clients present you with a boilerplate clause fait accompli you can quickly present your own and equally say "Sorry, this is the way it is for everyone". There might be the occasional case in large companies where the PM doesn't have the authority to accept it, but in most companies, especially smaller outsourcers, where the owner is readily accessable to the PM or whoever you're dealing with, its unlikely to be a problem for them to accept your clause.

Certainly it would be very risky to accept a clause that puts you into unnacceptable liability - as someone earlier mentioned, globalisation is extending legal reach all the time and you never know what the future might bring.


 
Monika M
Monika M
Poland
Local time: 10:11
English to Polish
+ ...
TOPIC STARTER
thanks Aug 5, 2010

Thanks for so many replies.

One thing, the headquarters is in the US, but I would work with the office in London and I would sign an agreement with the London office and the governing law would be the law of the UK. So, for the geographical argument that I'm far from America, well.. London is not so far:),
but some of you are right and I think so too, that you never know, particularly in the times of globalisation, so I would not feel safe that they cannot reach me because I'
... See more
Thanks for so many replies.

One thing, the headquarters is in the US, but I would work with the office in London and I would sign an agreement with the London office and the governing law would be the law of the UK. So, for the geographical argument that I'm far from America, well.. London is not so far:),
but some of you are right and I think so too, that you never know, particularly in the times of globalisation, so I would not feel safe that they cannot reach me because I'm in Poland..
maybe it's not a big probability they they would sue a foreign citizen but there is some...

Well, that's for geography:)
but back to the main issue, that is the liability.
I know that as a translator I am responsible for my work, for the translation I deliver. I had liability clauses in agreements that I signed with Polish agencies, but they were mostly of such type:
the company CAN claim damages,

and that's different from
I WILL pay you for all the damages,

which the discussed clause basically says, as I understand it,

and with such clause they don't really have to go to court, just one beautiful day I will receive a bill that will say I have to pay e.g. 1million dollars to cover their damages...
(ok, exaggerated, but it shows the point).

And I'm wondering, is it a standard clause in foreign/English/American contracts? Or do some agencies have less strict provisions?

Some time time ago I also were to sign a contract with an agency from the US, they had a very similar provision stating that I SHALL indemnify and hold harmless them for all the damages...
I did not sign that contract,
but now I'm wondering, is it standard?

And another thing, the agency is a big one, with many branch offices in different countries, so I don't think they will care for one translator who would like to change their agreement, I think they have many translators working for them, and it seems they all accepted their agreement, so in my opinion it's the situation that either you accept all of the agreement or you don't work for them.

MM
Collapse


 
John Fossey
John Fossey  Identity Verified
Canada
Local time: 05:11
Member (2008)
French to English
+ ...
There is no "standard" liability clause Aug 5, 2010

Monika M wrote:
...
And I'm wondering, is it a standard clause in foreign/English/American contracts?
...
MM


When we're talking amounts in the $100 range its okay to talk about "standard" clauses. But with liability clauses, where the sky's the limit, there's no "standard" clause - everything is open to negotiation.

Of course, in the case of a large company, you may not be able to get a change, then its your decision as to what you want to accept. You can still put a disclaimer on your invoice.

[Edited at 2010-08-05 15:11 GMT]


 
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