The short answer: if you don´t like it, don´t sign it | Aug 17, 2019 |
However, it is not always that simple. You have to agree to some NDAs and contracts to get work at all, so how far can you compromise? I will not answer all your queries, but here are a few thoughts. Firstly, you are a business partner, not an employee. You can negotiate terms that are unreasonable, or at least try to find a compromise that is realistic. Do not simply accept everything that comes your way! If the Customer changes the terms later, do not agree to lower rates or... See more However, it is not always that simple. You have to agree to some NDAs and contracts to get work at all, so how far can you compromise? I will not answer all your queries, but here are a few thoughts. Firstly, you are a business partner, not an employee. You can negotiate terms that are unreasonable, or at least try to find a compromise that is realistic. Do not simply accept everything that comes your way! If the Customer changes the terms later, do not agree to lower rates or less advantageous terms, no matter what kind of sob story or competition claim they may come up with! On compensation for damages, my advice is to take out professional indemnity insurance, and read the small print in your policy carefully. Clarify with your insurers if necessary what is covered, and especially where the limits go. Are you a member of a professional translators´ association? If so, you could ask them for advice. The legal details will vary from country to country, but in general, as a one-person company, you do NOT have assets or cover to pay unlimited damages, and it is not reasonable to push all liability over to you anyway. Far bigger companies limit their liability to direct loss, excluding loss of profit, loss of goodwill and all sorts of other indirect claims. The information is provided “as is” and there are no representations or warranties, express or implied, with respect to the information, including but not limited to a warranty against infringement, accuracy or completeness. Recipient will use all information received in a safe and prudent manner and is responsible for all risk or loss arising out of its use of such information. Recipient agrees that Discloser shall have no liability resulting from the use of the Confidential Information or such other information. This is extremely woolly. Before signing, I would simply strike out ´... and is responsible for all risk or loss arising out of its use of such information. Recipient agrees that Discloser shall have no liability resulting from the use of the Confidential Information or such other information.´ Non-solicitation - if you are a freelancer, ignore it. If you start an agency or anything like that within three years, bear it in mind when employing people. Non – compete. Recipient undertakes to Discloser that it shall not KNOWINGLY enter, directly or indirectly, into any assignments, or in any other manner accept any assignments or render any services to such Discloser’s clients where the services of the Recipient are sought to be utilized, either during the tenure of this Agreement or for a period of three (3) years after termination of this Agreement. I insert KNOWINGLY in large red letters in clauses like that. You should not actively poach clients, of course, but if they approach you, and the name looks familiar, check whether you have anything to link them with the relevant agency. Otherwise, when clients approach you, you cannot be expected to ask them whether they have ever worked with any of the agencies you may have worked with in the last three years… Equitable relief and € 10,000. The amount sounds to me like the limit that some insurers might set for their professional indemnity insurance. Again, check with your insurers how far you are covered. Actually, this clause is far more reasonable than some of the ´all and any´ clauses I have seen, which, taken literally, leave the translator liable for totally undefined sums to parties who are only indirectly affected. The Customer shall not be obliged to send orders… No orders, no work, no pay. The fact that you have signed a contract with them does not mean they MUST send you orders. If they have sent a clear go-ahead, whether they call it a PO or not, then they owe you for the services rendered. However, they are not obliged to send an order, PO or whatever, if they have only sent an enquiry. (They may send it to several translators and not choose you, for instance.) Without more details, that is how I would understand the clause. the Services shall be provided under the business run by the Contractor and no third parties shall be employed to provide the Services, unless agreed otherwise with the Customer. The Customer has a contract with you personally, having seen your qualifications etc. and possibly your work. They do not want you to subcontract the work to anyone else, and pass on the confidential documents etc. to others, without agreeing with them. If that is how you run your business, fine, but they want to know. ________________________ The other terms and conditions are more or less normal apart from the time limits, which strike me as rather long. With luck the situations will not arise, but you can either try to limit the periods (probably a waste of time, but if you don´t try you have to accept them). As for delivering late, or delivering a translation with serious errors, there is always going to be trouble. Sometimes an abject apology and a corrected file (if delivered in time) can save the situation, but it depends on a lot of factors. This is where you get into the areas of loss and damages… depending on how serious, etc., or if the client really needed the translation on a specific date, and so on. Reducing the remuneration? Services provided should be paid for, OR NOT? Besides, they could set impossible deadlines or makes changes after I start on the project which would be kinda … If you deliver a crap translation (perish the thought, but it is theoretically possible), the Customer might be justified in reducing the price. If they propose an impossible deadline from the start, it is your responsibility to negotiate a better one or turn down the job. If they make changes after you start on the project, then again, you are entitled to negotiate extra payment, extra time, or whatever you need to deliver a quality translation. If, after you have started, YOU become ill or for any other reason cannot meet the deadline, LET THE CUSTOMER KNOW AS SOON AS POSSIBLE, and try to find a solution, or let them find another translator. This is where you can recommend a trusted colleague if appropriate, but LET THE CUSTOMER KNOW, don´t just let your colleague take over... _________________________ Payment terms. Could be worse! I prefer to send invoices at the end of the month, and my terms are 30 days from then. I can then accumulate jobs if I have more than one from the same client in the month. If you complete a job before the 10th of the month and submit your invoice immediately, you may get paid earlier. If the client´s portal or website where you upload invoices is efficient, this CAN be a good way of doing it, but you need to make sure your invoices are acceptable to the tax authorities where you live. (I have dropped clients because their portals have been too much trouble, especially if their payment terms are 60 days or more after the end of the invoicing month … I would accept these terms to begin with, but that is one of the things you have to negotiate or decide for yourself whether to accept them.) An Agreement for an indefinite period. This means that it applies to all jobs the Customer may send to you, until one of you decides to terminate the agreement. In view of the long non-competition periods, I might insert a comment that these periods apply for three years after the last assignment sent by the Customer, if the agreement was not otherwise terminated, because otherwise they can in principle bind you for ever! Or you can simply say you no longer wish to work for them, and terminate the agreement yourself, should you feel like that at any time. You do not have to give a reason, unless it serves a purpose. __________________________ Read the contract through, strike out anything you really cannot accept, and try to negotiate - sometimes clients accept a good reason. Then you have to decide how much you need the work, and whether the advantages are greater than the risks. Some of these very draconian 'equitable remedies' and whatever are not entirely unreasonable IF the situation runs off the rails. You make no mention of late payment! For clients in northern Europe, there are way and means, if the situation arises. Check the Blue Board and other places, but I tend to give customers the benefit of the doubt, and I have had very few problems. You simply have to keep the rules for your part, deliver as requested and on time etc. I hope you have found a good customer - best of luck!
[Edited at 2019-08-17 19:00 GMT] ▲ Collapse | |