https://wiki.proz.com/forum/business_issues/311095-what_is_it_with_indemnity_clauses-page2.html

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What is it with indemnity clauses?
Thread poster: Gabriele Demuth

Gabriele Demuth  Identity Verified
United Kingdom
Local time: 19:07
English to German
TOPIC STARTER
In my experience... Jan 24, 2017

Mirko Mainardi wrote:

With ProZ, we're paying to use the services offered by this platform, and we're responsible for the use we make of it. If I barged in here and started insulting everyone, making specific allegations, publishing copyrighted materials, etc. I wouldn't expect ProZ to be responsible in my stead for possible legal action arising out of any of the above, for instance...



As Proz is reasonably large organisation they have taken advice from lawyers who have written their terms. Therefore you would probably find a clause in Proz's terms limiting their own liability for any such event to not very much indeed, so what ever happens on here Proz is probably not liable for the actions of others and third parties...

Any serious company seems to protect themselves against eventual damages that could potentially ruin their business and much more. People are not always reasonable, so why risk it?


 

Ilan Rubin (X)  Identity Verified
Russian Federation
Local time: 22:07
Russian to English
Sam: Jan 24, 2017

What is the document you are referring to?

 

Christine Andersen  Identity Verified
Denmark
Local time: 20:07
Member (2003)
Danish to English
+ ...
Check what your own indemnity insurance covers Jan 24, 2017

I inform clients in the USA, for instance, that my indemnity insurance does not cover work I may do for them, and that I translate into UK English, not US English. Some send me the job anyway, and some find another translator, usually saying my rates are too high, or because I don't have time within their deadline, but then it is up to them.

I have an insurance policy that covers events like fire, theft and computer virus as well as quite a tidy sum in professional liability. Beyond
... See more
I inform clients in the USA, for instance, that my indemnity insurance does not cover work I may do for them, and that I translate into UK English, not US English. Some send me the job anyway, and some find another translator, usually saying my rates are too high, or because I don't have time within their deadline, but then it is up to them.

I have an insurance policy that covers events like fire, theft and computer virus as well as quite a tidy sum in professional liability. Beyond that, however, I simply do not have the financial capacity to pay enormous amounts to undefined groups of people.

The next question is: why would I be liable anyway, to all the agency's employees, suppliers, friends and neighbours, with whom I have no contractual relation? A translator may be responsible for his/her own actions or negligence in some ways under tort law, but that is not the same as liable to 'everyone and his dog'.

It might be an idea to consult national professional associations like the ATA or CIoL - the ITI model is mentioned above, so they at least have thought about it. For one thing, insurers and professional associations have a certain authority, and have to be respected, and for another, translators can then stand together and force agencies to be reasonable, instead of just finding a translator who does not read the NDA properly.



[Edited at 2017-01-24 17:06 GMT]
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Carolina Finley
 

Kay-Viktor Stegemann
Germany
Local time: 20:07
Member (2016)
English to German
This one is not about your actual work Jan 24, 2017

Michael Joseph Wdowiak Beijer wrote:

I'll copy/paste the text too:

"Liabilities and Indemnity.

This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the IC will be fully responsible for and will indemnify and keep indemnified the Company in respect of any income tax, value added tax and national insurance and social security and any other liability, loss, damage, cost, expense, deduction, contribution, assessment, penalty, fine or interest arising from or made in connection with any claim that, through the provision by the IC or any sub-contractors of the Translation Services, the IC and/or any of its employees or sub-contractors are employees of the Company."


Apart from the fact that it looks like the last bit is ungrammatical, it's way too much to be promising.

I am therefore currently drafting my own terms and conditions (which I will base on the ITI model). I will also be going through all of the old ones I already signed (yes, without reading them properly), and if they say something similar, will be contacting the client to tell them I can't agree to it. A clause limiting my liability to the invoice amount sounds pretty fair, but I still need to think about it a bit more, as this does sound kind of arbitrary.

Michael


Michael, when you look at it closer, you see that this particular clause does not include any liabilities from your actual translation work. It covers only those liabilities that might arise if you falsely claim to be an employee of the company. That's all this paragraph is about. And the grammar seems quite fine if you spend some time to deconstruct this convoluted sentence in legalese.

So you should take a second look at the contract to find out if there is an actual indemnity clause regarding your work. If this one is the only indemnity clause, it should be no problem.

Apart from that, I agree with all who say that those clauses should be limited to the respective amount of the invoice, and I already successfully negotiated such amendments with an agency.


IanDhu
 

Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
Question Jan 24, 2017

What is wrong with being 100% liable for trouble that you cause?

If it's your fault, surely you should take the hit?

What am I missing here?


 

Gabriele Demuth  Identity Verified
United Kingdom
Local time: 19:07
English to German
TOPIC STARTER
Really? Millions? Jan 24, 2017

Chris S wrote:

What is wrong with being 100% liable for trouble that you cause?

If it's your fault, surely you should take the hit?

What am I missing here?


That could be millions and whatever lawyers of big firms may dream up! Why would you open yourself up to that? Nobody else does.

How much would your insurance bill come to if you did?

On that note, a work colleague of my partner (the company) was sued by a client because the colleague alegedly didn't close the front door properly and as a result their dog run out and got run over by a car... so there, it happens...

[Edited at 2017-01-24 16:42 GMT]


 

Michael Beijer  Identity Verified
United Kingdom
Local time: 19:07
Member (2009)
Dutch to English
+ ...
thanks Kay-Viktor! Jan 24, 2017

Kay-Viktor Stegemann wrote:

Michael Joseph Wdowiak Beijer wrote:

I'll copy/paste the text too:

"Liabilities and Indemnity.

This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the IC will be fully responsible for and will indemnify and keep indemnified the Company in respect of any income tax, value added tax and national insurance and social security and any other liability, loss, damage, cost, expense, deduction, contribution, assessment, penalty, fine or interest arising from or made in connection with any claim that, through the provision by the IC or any sub-contractors of the Translation Services, the IC and/or any of its employees or sub-contractors are employees of the Company."


Apart from the fact that it looks like the last bit is ungrammatical, it's way too much to be promising.

I am therefore currently drafting my own terms and conditions (which I will base on the ITI model). I will also be going through all of the old ones I already signed (yes, without reading them properly), and if they say something similar, will be contacting the client to tell them I can't agree to it. A clause limiting my liability to the invoice amount sounds pretty fair, but I still need to think about it a bit more, as this does sound kind of arbitrary.

Michael


Michael, when you look at it closer, you see that this particular clause does not include any liabilities from your actual translation work. It covers only those liabilities that might arise if you falsely claim to be an employee of the company. That's all this paragraph is about. And the grammar seems quite fine if you spend some time to deconstruct this convoluted sentence in legalese.

So you should take a second look at the contract to find out if there is an actual indemnity clause regarding your work. If this one is the only indemnity clause, it should be no problem.

Apart from that, I agree with all who say that those clauses should be limited to the respective amount of the invoice, and I already successfully negotiated such amendments with an agency.


You're right. I get it now. I think I was expecting something else, so didn't see that the whole clause is only about not being able to hold them liable if you claim that you're an employee of the company, and it turns out that you're right in some way pr another.

Michael


 

Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
Yes, really Jan 24, 2017

Gabriele Demuth wrote:

That could be millions and whatever lawyers of big firms may dream up! Why would you open yourself up to that? Nobody else does.


I suspect that if your translation kills someone, having a clause limiting your liability to the £30 price of the translation won't count for much...


 

Daryo
United Kingdom
Local time: 19:07
Serbian to English
+ ...
wait a second, not quite ... Jan 25, 2017

Kay-Viktor Stegemann wrote:

Michael Joseph Wdowiak Beijer wrote:

I'll copy/paste the text too:

"Liabilities and Indemnity.

This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the IC will be fully responsible for and will indemnify and keep indemnified the Company in respect of any income tax, value added tax and national insurance and social security and any other liability, loss, damage, cost, expense, deduction, contribution, assessment, penalty, fine or interest arising from or made in connection with any claim that, through the provision by the IC or any sub-contractors of the Translation Services, the IC and/or any of its employees or sub-contractors are employees of the Company."


Apart from the fact that it looks like the last bit is ungrammatical, it's way too much to be promising.

I am therefore currently drafting my own terms and conditions (which I will base on the ITI model). I will also be going through all of the old ones I already signed (yes, without reading them properly), and if they say something similar, will be contacting the client to tell them I can't agree to it. A clause limiting my liability to the invoice amount sounds pretty fair, but I still need to think about it a bit more, as this does sound kind of arbitrary.

Michael


Michael, when you look at it closer, you see that this particular clause does not include any liabilities from your actual translation work. It covers only those liabilities that might arise if you falsely claim to be an employee of the company. That's all this paragraph is about. And the grammar seems quite fine if you spend some time to deconstruct this convoluted sentence in legalese.

So you should take a second look at the contract to find out if there is an actual indemnity clause regarding your work. If this one is the only indemnity clause, it should be no problem.

Apart from that, I agree with all who say that those clauses should be limited to the respective amount of the invoice, and I already successfully negotiated such amendments with an agency.



That's a kind of clause you should NEVER even consider signing!!!

.... in connection with any claim that, through the provision by the IC or any sub-contractors of the Translation Services, the IC and/or any of its employees or sub-contractors are employees of the Company.

MEANS

... in connection with any claim [including by the tax authorities] that, through the provision by the IC or any sub-contractors of the Translation Services, the IC and/or any of its employees or sub-contractors are employees of the Company.

Translated in plain-speak:

if the tax authorities decide that your status of "Independent Contractor" is fictive and that you are in fact a disguised employee, all financial consequences are exclusively your problem !!!

The company gets fined for making you work only for them for months on and calling you an "independent contractor" instead of employing you?

YOU PAY THE FINE!!! and on top of that also ALL the taxes that they would have had to pay as your employer, just for good measure!

This is VERY FAR from being just a "hypothetical situation" - if happened in France when some "independent translators" were declared by the taxmen to be de facto employees of their clients! (Google it, no time to search for it) A similar situation is the running dispute with Uber where their "Independent Contractor" drivers are claiming employment rights. Not the mention the endless disputes in UK between the taxman and various companies about how long someone "self-employed" can keep working for one and same company ...

This clause has NOTHING to do with the quality of your work - it's ONLY about them preserving/protecting all the savings they make when they use an "Independent Contractor" instead of employing them! If THEY run into problems with the taxman or some other authorities, well ... it will become YOUR exclusive problem.


[Edited at 2017-01-25 04:42 GMT]


 

Gabriele Demuth  Identity Verified
United Kingdom
Local time: 19:07
English to German
TOPIC STARTER
Vulnerability Jan 25, 2017

Reading this I do feel very vulnerable! Agencies have their legal departments that design confusing contracts to cover every eventuality and situation possible, and I feel one should really get every such contract checked by a lawyer before signing anything - even if you think you understand, you might be mistaken, if you not a lawyer yourself?!

Or only work with agencies that have easy to understand contracts or none at all...


 

Samuel Murray  Identity Verified
Netherlands
Local time: 20:07
Member (2006)
English to Afrikaans
+ ...
@Chris, common misconception Jan 25, 2017

Chris S wrote:
What is wrong with being 100% liable for trouble that you cause?
If it's your fault, surely you should take the hit?
What am I missing here?


This is a common misunderstanding of what indemnity is. Indemnification makes you liable for much more than just the trouble that you cause. It also makes you liable for the trouble that the client previously thought that you caused, even if it turns out (and is proven) that you didn't cause it.

Another problem with "being 100% liable for trouble that you cause" is that, unless you have endless financial resources, it is always smart to limit that liability to something that you can actually afford. These clauses usually promise unlimited, open-ended liability, regardless of what you might have thought your responsibility was.


Carolina Finley
 

Melina Kajander
Finland
English to Finnish
+ ...
"Killer translations"? Feb 15, 2017

Chris S wrote:

Gabriele Demuth wrote:

That could be millions and whatever lawyers of big firms may dream up! Why would you open yourself up to that? Nobody else does.


I suspect that if your translation kills someone, having a clause limiting your liability to the £30 price of the translation won't count for much...

I'm really not sure how could anyone ever say something like that...!! "Your translation kills someone"?? That just wouldn't ever happen, translations don't "kill" people... I'd understand that could happen to, say, doctors or nurses, but even they (to my knowledge) don't get hit with millions of dollars of liability demands in such a not unlikely event...

Not to mention anyone else than a multi-millionaire could never in any circumstances pay such liability demands, which I assume no translator is (or they wouldn't need to work anymore ).



[Edited at 2017-02-15 11:02 GMT]


 

Rita Translator  Identity Verified
Germany
Local time: 20:07
German to English
It can happen much more easily than you think Feb 15, 2017

Melina Kajander wrote:

Chris S wrote:

Gabriele Demuth wrote:

That could be millions and whatever lawyers of big firms may dream up! Why would you open yourself up to that? Nobody else does.


I suspect that if your translation kills someone, having a clause limiting your liability to the £30 price of the translation won't count for much...

I'm really not sure how could anyone ever say something like that...!! "Your translation kills someone"?? That just wouldn't ever happen, translations don't "kill" people... I'd understand that could happen to, say, doctors or nurses, but even they (to my knowledge) don't get hit with millions of dollars of liability demands in such a not unlikely event...

Not to mention anyone else than a multi-millionaire could never in any circumstances pay such liability demands, which I assume no translator is (or they wouldn't need to work anymore ).



[Edited at 2017-02-15 11:02 GMT]


Translate the dosage instructions for medication, including maybe a table of numbers for ages/weights/mg, and make a typo (3x / daily instead of once, 100mg instead of 10mg, etc.). Someone can die very quickly that way.

It's much less probable if you typically translate marketing brochures, but there are some areas of translation that can have serious consequences if there are errors.


Kay Denney
D. I. Verrelli
Rachel Waddington
 

John Fossey  Identity Verified
Canada
Local time: 14:07
Member (2008)
French to English
+ ...
One possibility Feb 16, 2017

Here's what I have at the bottom of my invoice, which a lawyer suggested:

Since I have no control over or knowledge of the source, use, destination or possible subsequent modification of the translation service provided, you agree that my total liability, in every case and for every reason, is limited to the amount paid for the work. By merely ordering translation work you are deemed to have agreed that these are the terms that apply, notwithstanding any other documents sent to me or displayed on your website.


Would it work, if it was put up against an unlimited liability contract? Who knows? But the lawyer thought it would put enough doubt into the enforceableness of an unlimited liability clause that it would likely hold them off. No client has ever questioned it.


 

Christine Andersen  Identity Verified
Denmark
Local time: 20:07
Member (2003)
Danish to English
+ ...
Even if they don't kill people, translation errors can be expensive... Feb 16, 2017

Endless discussions can arise from the understanding of points of law and then whether they are correctly translated.

There was a rumour that some of the EU Water Framework Directive and its ramifications were implemented very restrictively in Denmark because of a dubious translation. I think it was more due to politics, which I cannot discuss here, but in any case, an awful lot of expenses were run up between farmers, agricultural associations, legal experts and politicians... Grea
... See more
Endless discussions can arise from the understanding of points of law and then whether they are correctly translated.

There was a rumour that some of the EU Water Framework Directive and its ramifications were implemented very restrictively in Denmark because of a dubious translation. I think it was more due to politics, which I cannot discuss here, but in any case, an awful lot of expenses were run up between farmers, agricultural associations, legal experts and politicians... Great swathes of agricultural land were suddenly being declared banks of watercourses, which could no longer be cultivated, and this was affecting farmers' livelihoods.

Bankrupting the translator as well as the farmers would not help anyone...

Missing dates on divorce certificates can prove expensive if someone has to cancel a wedding and a party, and incorrect information - dates, for instance - on any kind of document can cause a lot of damage, even if technically it is only a very tiny translation error.

Up to a point, yes, translators must be liable for their own actions or negligence, but so are proofreaders and all others involved in the process. It is NOT reasonable to demand that the translator should bear the entire responsibility to everyone remotely concerned.

Most suppliers of goods and services have clauses limiting their liability to direct costs - I have translated hundreds of clauses about non-liability for indirect loss, loss of earnings, loss of profits, down-time, consequential damage to this and that...

If any normal manufacturer or provider of services can limit their losses to a realistic level, so can translators, and so should we.

Take out a reasonable indemnity insurance, proofread and check your texts before you deliver them, pray that the worst won't happen, but if an indemnity clause implies that you will pay more than you have cover for, DON'T SIGN!
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Carolina Finley
Rowan Morrell
 
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