Here are two contracts sent by two translation bureaus to freelance translators. The terms of these contracts provoked a lively debate on the Foreign Language Forum (FLEFO) of CompuServe. If youre a translator or a bureau owner, were interested in your comments as to the fairness of these contracts. If you have a legal background, please comment on their legal aspects. If you have some other interesting contracts to share, please pass them along to the editor.
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Contract Number 1
Confidentiality and Non-Compete Agreement
Agreement and acknowledgement between XYZ Translation Company (hereinafter referred to as XYZ) and _________ (hereinafter referred to as Translator), relating to all jobs completed for XYZ (hereinafter referred to as Project).
XYZ will furnish Translator certain confidential information relating to Project for purposes of translation. The translator agrees to review such information only for the purposes of translation and to otherwise hold such information strictly confidential, and not release any information to a third party without prior written approval. You further agree to limit access to these materials to those persons in your organization who are directly engaged in or responsible for translating.
Acceptance of the material is with the understanding that all material submitted, and any copies thereof, will be returned to XYZ, upon completing the translating of the project. Furthermore, Translator agrees that he/she cannot contact XYZs client directly for any purpose whatsoever from the date the project begins until a period of five years after the project has been completed.
Translator acknowledges that all such information is and will remain property of XYZ and that unauthorized use will cause irreparable harm to the company. Translator agrees that in the event of breach of this Agreement, XYZ will be entitled to injunctive relief and any other remedies permitted by law.
Accepted by:
Name/Title
Date
Please comment on the above contract. Selected responses will be placed on this page as they are received. If the number of responses does not allow placement on the Web page, they will be made available for download. The Editor reserves the right to edit readers responses.
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Readers Comments
The non-contact clause
at the end of paragraph 3
goes too far for me,
but Im not certain that
it is unfair.
A freelancer who feels
constrained to work with
that particular agency
might suggest a
counterclause to the
effect that the agency
agrees to hold the
freelancer harmless
for any damage arising
as a result of the
agencys failure
to convey the
translators
questions and
concerns to the
author(s).
Knowing some agency
owners, I could imagine
their deciding to
use such a clause
to try to prevent
inexperienced freelancers
from being a nuisance to
their favorite
clients and to try
to prevent their
star freelancers
(or employees, for
that matter) from
being poached.
But if I had an agency,
I would expect to avoid
inexperienced freelancers
and to treat my stars
well enough not to have
to set up an embargo
around my clients.
As with political
embargoes, is there
any way of knowing
how effective
such clauses are
(if at all) in the
translation context?
In a different vein,
do contracts ever sound
friendly and fair?
The wording here sounds
about the same as
what I have seen
of non-compete clauses
for business executives,
R&D whizzes, etc.
though five years
seems excessive.
Name withheld
Never work for bureaus. Thats been my fule for thirty-five years, and its the advice I give to my students. Get a job in house or be a proper freelance dealing directly with your own clients. If you can neither get a job nor find clients, change your profession.
Roger Greaves, Paris, France
This contract is more or less the same as used by a lot of agencies, perhaps the wording may be slightly different. All clauses seem to be acceptable, except the last one; five years seems to be too long. Anyway, no honest translator would approach a customer to whom he/she was introduced by an agency.
Joseph Feredoes, Brisbane, Queensland, Australia
Contract Number 2
...
2.
If we do not receive the file on the specified date, you will be fined as
follows. This fine will be deducted from final total moneys due to you:
$5 for every hour you are late or
$40 for each day you are late.
3.
If we have problems opening the file from you and cannot reach you, you will be
fined $10 for our inconvenience in opening the file.
4.
If there are mistakes in the English of the document (misspellings, phone
numbers) you will be fined $ .25 per word for these mistakes.
5. 6. 7.
If we call you with a question, problem and you do not respond within 24 (48,
72) hours, we will deduct $25 ($50, $100) from the final total moneys owed to
you.
8. Your rate includes 1 review of the final formatted document to ensure that
word and line breaks are correct. When you receive a phone call from the
project coordinator indicating a review is needed, you must respond to him
within 24 hours and review the material within 3 business days.
Please comment on this contract:
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Readers Comments
Conditions are tough and so-to-say one-sided;
the translator has to pay in every case.
It is not fair. I think it is enough to outline the
format and deadline saying that the translator
must meet the deadline, otherwise he will be fined
(30%, then 50% for instance).
Name withheld
Apart from the use of
the male pronoun, I
am not sure how this
is one-sided.
As far as payment is
concerned,
isnt it an excerpt
from a contract?
I would assume
that clause 1 (omitted
here) states the
dimensions of the job,
the translators
payscale and
timeframe (like
a delivery contract
for plant or machinery).
I would object to
the file-opening fine
as way too vague.
What is to prevent the
agency from simply
deducting ten bucks
from every bill
by claiming they had
trouble and tried to
email/call me at some
absurd time from my
point of view?
Name withheld
I often work for translation bureaus and Ive seen several contracts, but Im really surprised with this one. I believe this company might occasionally make the translator actually pay for the work done. Its really amazing. Things would be so wonderful if we could have contracts like this for all the services we need, such as repairing our cars, fixing our computers, going to a doctor, having our houses painted...
Carolina Alfaro, Rio de Janeiro, Brazil
This document seems to be set up so that the translator pays for the ignorance and inexperience of the writers of the contract, or their inability to contact the translator. If a company is so inept it cannot perform basic functions such as opening a file, there is definitely something wrong. It should be noted that in the monolingual publishing world it is not standard practice to fine someone for typos. I would never sign such a document.
Wayne McCallum, Wellington, New Zealand
The contract stipulates: you must ... review the material within 3 business days.
And if its a 1200-page book? The contract should specify the amount of pages to be reviewed daily.
Name withheld
This agency obviously prefers to work with mediocre translators and
not to bother to improve its own procedures. The fines suggested here
indicate that they would accept lots of mistakes (and pay someone
in-house to fix them) rather than establish a system where fines would be a measure to
improve the quality of work subcontracted. $0.25 per word of mistake is too
high to mean anything else than somebodys salary for retranslation.
Although certain performance guarantees may be necessary in some cases,
the sanctions should be two-way, i.e., should the agency fail to provide the
right word whenever I need it...
Never sign such a contract.
Name withheld
Actually I work as an interpreter so I must admit I dont know much about contracts of this type. As an outsider Id say the contract is at the least amusing. Are you sure it was actually submitted? It seems to lack important details. How much would the fine be if Sans Serif was used instead of Arial? .0005% seems reasonable to me. Do you agree?
From a more abstract standpoint I think contracts such as these fit within a general trend of todays society to over formalize all aspects of life. ISO 9000, common degree programs, EU laws of all sorts are just some examples of the need to regulate and define everything, from the optimal size of nuts and bolts to the recommended thickness of icing on cakes.
Name withheld
The problem with this contract is that it treats human error as a capital crime. I am the operations manager for a translation company. Our process avoids the necessity for such punitive measures. After all, our translators are our business partners just as we are theirs. We strive for a relationship of mutual respect. Our translators begin with small projects, and as they demonstrate their skill and professionalism, the projects offered increase. We believe in communication and competent project coordination.
Julie MacGregor, Atlanta, Georgia, USA
Point 3: If we have problem opening the file from you and cannot reach you, youll be fined for our inconvenience in opening the file. What if the above is due to:
The agencys incompetence in opening the file?
The incompatibility between agencys and translators OS or software?
An innocent glitch in the electronic transmission?
Last but not least: why should the translator be responsible if an agency cannot reach him/her? What if he/she is on assignment or is cruising in the Adriatic? Should he/she do nothing but just wait at the telephone once the job is delivered? This is so ridiculous!