Today's brief post is about a topic that we consider vital to your success: documents that require your signature, specifically, documents that either an end client or a translation/interpreting agency sends you before you have an agreement and before services are rendered. Remember that we are not attorneys, although one of us is married to one. The following is not legal advice, but rather our advice on what we have learned in the T&I trenches. Here it is, in easy-to-read bullet format.
- Read everything. Even if the client insists that you need to sign this right now or the world will come to and end (yes, this is the sense of urgency that's sometimes communicated to the translator or interpreter), take your time to read everything. Also be sure that you understand what you are reading. If you don't, consider asking.
- If you don't agree with something on the document, be it a confidentiality agreement, a purchase order, or a non-compete agreement, don't sign it. These documents can be considered drafts of contracts, and they are not court orders with which you need to comply. We occasionally get non-compete clauses that are so completely egregious that we simply can't agree to them. So we go into the document, delete/amend the portions we don't like and send it back to the client for their review. Initially, we used to be a bit nervous about this, because just like many service providers, we want to make everything easy for the client. That said, we also have to protect our business interests, and sometimes that's a thin line. However, pretty much all of the time, the client has agreed to our changes and we've signed the redacted version of the document.
- Even if the client claims that this "is just completely standard," it still has to be a standard that works for both parties. A contract is an agreement between two parties, and if you don't agree, say so. Don't be afraid of potentially losing a client. If the client isn't willing to respect your business interests, then perhaps this is not a good basis for a work relationship. We assure you that there will be other, better clients. We recently turned down a hugely lucrative contract with a tech giant because their terms were so outrageous (especially their terms in case of any errors and omissions) that our entire business would have been at risk. The client said that the contract was just a formality, but after having two attorneys review the terms, we decided to decline. It was a tough decision, but ultimately we thought it was the right one.
- One of us (Judy) spends a lot of time in legal proceedings as a court interpreter, and it's never fun to go to court if it's about you. Save yourself the trouble of having to litigate anything and negotiate everything before you sign. Once your signature is on the document, it's official, so think twice before you sign.
Of course, this list is by no means exhaustive and is only meant as initial food for thought. What about you, dear colleagues? Do you have any other advice on handling this issue? We'd love to hear from you.
6 comments:
Contracts are always written to serve the interest of the party who has drafted them. Even if that party doesn't try to pull something shady over one, sometimes they are unaware to how a certain clause can come across or how it could be an issue for the other side. Therefore, always treat the first version of a contract as a draft that can, and should, be amended.
As service provider we can, and should, have our (fair, ethical, and transparent) terms of service that we can send to clients. Even if this is not really an option at times, the mere excercise of creating one's Terms of Service is very beneficial. Many, unfortunately, never bothered to define their TOS and expect others to dictate the terms to them. Without TOS or at least some boundaries, one cannot effectivley go over and amend someone else's contact.
@Shai: Very well said. Thanks so much for sharing your insight, and thanks for reading. You are absolutely right that the contract serves the interest of the party that drafts it. And yes, it is very important to have TOS.
Hello Judy and Dagmar,
Thank you so much for writing this! I've been struggling with an agreement that I felt was unreasonable over the last two weeks, and finally decided to politely say that if the terms can't be modified then unfortunately I can't work with the other party. It's not the first time this has happened, and although I'm sure I have missed some opportunities at least I'm not awake at night worrying about it.
As I'm a member of the ITI, I use their standard terms and conditions as a base, but in my experience most translation companies will only allow their own terms and conditions and not all of them are prepared to negotiate.
And contracts or T&Cs don't have to be one-sided! I've seen a wonderfully balanced agreement issued by an international organisation, which was fair, well-written and even short! It was something I was happy to sign. I wish there were more like that.
@Arline: Our pleasure! Many thanks for reading and for your very thoughtful comment. Sorry to hear about your recent struggles with the agreement, but we think you did the right thing -- such obstacles and unwillingness to negotiate is rarely a good start to a mutually beneficial relationship. And yes, the ITI has some great guidelines, as do other T&I organizations. These do come in very handy.
How fantastic that an international organization has a fair and short agreement. Perhaps other organizations will use it as a template -- yes, we can dream....
I too think that you did the right thing, Arline.
This is the importance of having your own ToS, you know what you are comfortable negotiating - how you can adjust your ToS to a specific circumstance while still protecting your interests and maintaining a mutual beneficial relationships - and what are the red lines.
I usually recommend fellow colleagues to create their ToS (and revise them periodically with the advancement of their career) even if they are still not comfortable sending them to clients. The importance is with the exercise itself that makes one sit, think about, and formulate one's boundaries. The insights from that exerciser could also (and eventually) affect one's career path.
I also don't think that you missed an opportunity by not signing an agreement you are not comfortable with. You might missed some short-term business, but from my experience, if you would have yielded, more often than not you would have come to regret it in the long-term.
Agencies with ridiculous agreements are usually just brokers, and their agreements and attitude are generally reflective of the overall experience one can expect from working with them.
And lastly, I think that I start noticing a hint of a little worrying trend. People who advice other (or themselves) to sign just about everything and anything, trusting that no one will take anything to court because the direct and indirect costs of litigation far exceeds the remedy, and that if an adhesion contract or otherwise unreasonable clause will get its day in court, the court will throw it out the door, siding with common sense.
This is a very dangerous, I think. The court will not always side with common sense when an agreement that stipulates otherwise was signed; and trusting that litigation is an empty threat that will never be pursued due to the costs, time, and effort involved is just an unnecessary business risk that should and can be easily avoided.
Agreements that are entered in good faith can be easily formulated to be mutually beneficial and protect the most important interests of both parties (and they are usually short).
@Shai: Thanks for your very thoughtful comment -- we really appreciate it and fully agree with you. And yes, even if perhaps most issues won't be litigated, you still shouldn't sign anything you don't feel comfortable with. As you very well point out, courts don't always side with common sense, but if a written agreement exists, that will certainly be enforced (as it should). The argument "It's just a formality" doesn't seem to be a strong one to us. Many thanks for your contribution!
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