HELP ABOUT CLAUSE ON CONTRACT DEMANDING CLIENT'S EXPLICIT APROVAL OF TRANSLATION PRIOR TO PAYMENT
Thread poster: Marta Esteban

Marta Esteban  Identity Verified
Spain
Local time: 13:37
Member (2014)
Spanish to English
+ ...
Jun 25

Hi, a client of mine has sent me a contract to continue with our services.

In it, there is a clause that states:

THE CLIENT will pay the COLLABORATOR the amount corresponding to each assignment, subject to the completion of the tasks entrusted and the delivery of the materials according to the agreed delivery schedule and provided that the COLLABORATOR has received the express, final and unequivocal approval of THE CLIENT regarding to the materials delivered.... See more
Hi, a client of mine has sent me a contract to continue with our services.

In it, there is a clause that states:

THE CLIENT will pay the COLLABORATOR the amount corresponding to each assignment, subject to the completion of the tasks entrusted and the delivery of the materials according to the agreed delivery schedule and provided that the COLLABORATOR has received the express, final and unequivocal approval of THE CLIENT regarding to the materials delivered.

I am concerned about the last sentences, because it is not under my control that the client answers me confirming his approval on the translation.

What if he never does? How can I demand payment if I sign this?

Any advice?

Thank you




[Editado a las 2019-06-25 16:32 GMT]
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Thayenga  Identity Verified
Germany
Local time: 13:37
Member (2009)
English to German
+ ...
The parties Jun 25

Well, the contract is between you and your client, the agency, and not between you and their client.

The agency has to ensure that the translation is correct before they pass it on to their client. As soon as they pass it on, they owe you.

The clause can be quite tricky. What if the client changes his mind and cancels the project after delivery? According to the clause, you will then have worked for nothing.

Ask them to rephrase this clause to reflect the b
... See more
Well, the contract is between you and your client, the agency, and not between you and their client.

The agency has to ensure that the translation is correct before they pass it on to their client. As soon as they pass it on, they owe you.

The clause can be quite tricky. What if the client changes his mind and cancels the project after delivery? According to the clause, you will then have worked for nothing.

Ask them to rephrase this clause to reflect the business connection and agreement between you and the agency.
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Tina Vonhof
Josephine Cassar
Liviu-Lee Roth
Teresa Borges
Kuochoe Nikoi
ahartje
Sandra& Kenneth
 

Marta Esteban  Identity Verified
Spain
Local time: 13:37
Member (2014)
Spanish to English
+ ...
TOPIC STARTER
It's a direct contract Jun 25

Hi Thayenga,

Thank you so much for your answer. The contract is between the client and me who sometimes do the translation myself or pass it on to another translator, depending on the languages. So the collaborator is me.

[Editado a las 2019-06-25 16:54 GMT]


 

Tina Vonhof
Canada
Local time: 05:37
Member (2006)
Dutch to English
+ ...
Agree with Thayenga Jun 25

I have come across this situation several times and the agency only mentioned this after they had received my translation. Getting approval from the end client can take days and meanwhile you are in limbo. You are not finished with that job, you can't clean up any papers that came with it, and your invoice will not go through yet. In short, it's a terrible nuisance.

Since this is a clause in a contract, you don't need to agree to it. As Thayenga says, your client is the agency, not
... See more
I have come across this situation several times and the agency only mentioned this after they had received my translation. Getting approval from the end client can take days and meanwhile you are in limbo. You are not finished with that job, you can't clean up any papers that came with it, and your invoice will not go through yet. In short, it's a terrible nuisance.

Since this is a clause in a contract, you don't need to agree to it. As Thayenga says, your client is the agency, not the end client. The agency should check and approve your translation, not the end client, and the agency should pay you regardless of what the client has to say.

Even if this is a direct contract, you deliver the work and you should be paid. If changes or corrections are needed, that can be arranged afterward.



[Edited at 2019-06-25 17:08 GMT]

[Edited at 2019-06-25 17:09 GMT]

[Edited at 2019-06-25 17:15 GMT]
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Thayenga
 

Thayenga  Identity Verified
Germany
Local time: 13:37
Member (2009)
English to German
+ ...
A direct client Jun 25

Marta Esteban wrote:

Hi Thayenga,

Thank you so much for your answer. The contract is between the client and me who sometimes do the translation myself or pass it on to another translator, depending on the languages. So the collaborator is me.

[Editado a las 2019-06-25 16:54 GMT]


Hi Marta,

even if this is a direct client and there's no agency involved, the clause is not, let's say, not quite ethical.

As Tina pointed out, you don't have to agree to it. Instead ask your client to enter into the following contract, once you have delivered the translation - and do attach your invoice to the same email - the client has, let's say, 2 weeks to check it. After 2 weeks, he or she owes you the price for your work.

Another "nice" clause is that the client reserves the right to demand changes or corrections up to 3 - 6 months after delivery. This is unacceptable. After all, the client sets the delivery date, and you set the payment date.


Josephine Cassar
Eliza Hall
Kay Denney
 

Laurent Mercky
France
Local time: 13:37
Member (Jul 2019)
Chinese to French
+ ...
Just a contract Jun 25

Hi,
It's just a contract, but if you have any question about one clause inside, maybe you could contact your client and ask for details.
Maybe, such a clause does not target you especially, maybe every translators will get such consideration from your client, right ?
Anyway, translation agencies which refuse to pay translation fees can't last long on the worldwide market.


[Edited at 2019-06-25 18:13 GMT]


Yolanda Broad
Philippe Etienne
 

Teresa Borges
Portugal
Local time: 12:37
Member (2007)
English to Portuguese
+ ...
@Marta Jun 26

May I ask you a few questions to better understand your problem? You started by saying “a client of mine has sent me a contract to continue with our services”. How long have you been working together? How well do you know your client? Why this change in your working practices? Though I do not agree with that wording I wonder if this contract is nothing more than a (dark) cloud of legalese constructed by an overzealous lawyer…

 

Sheila Wilson  Identity Verified
Spain
Local time: 12:37
Member (2007)
English
+ ...
1. You need to be paid 2. They need to be allowed nn days to raise concerns Jun 26

Marta Esteban wrote:
I am concerned about the last sentences, because it is not under my control that the client answers me confirming his approval on the translation.

What if he never does? How can I demand payment if I sign this?

You're quite right to query it. I'm (99%) sure it wouldn't stand up in court. A judge would not agree that just because the client didn't get around to saying your translation was fine, you weren't entitled to payment. That would be ridiculous. I personally have difficulty getting my clients to even acknowledge receipt -- the moment they get it, they rush off to use it!

But you don't want to sign the contract and then have to fight it in court; you need to squash this idea of theirs now. You need full payment of your invoice on or before the due date. If they have quality concerns then they must raise them within a certain period, in which case, they'll be addressed. That's not contract wording, by the way, just the thinking behind the clause.

I personally allow my clients until the payment due date (I.e. 30 days month end) to raise their concerns. All queries so far have come to light in just a few days and been addressed well before the due date, so payment terms haven't been affected. If a client were to leave it until the eve of the payment date, then I'd have to allow them a bit more time to pay -- just until I'd addressed the problem, after which payment would be due asap. According to your contract clause above, you could be waiting for ever, even if they had no quality concerns. And that simply isn't right!


kmtext
Philippe Etienne
Michele Fauble
 

Philippe Etienne  Identity Verified
Spain
Local time: 13:37
Member
English to French
Speaking of which Jun 26

I was approached a few years ago by one of the mammoths for a specific project of a few thousand euros. There again, mammoth toxic behaviour was confirmed.
After 3 weeks of on-off negociations to wedge my diva requirements into the mammoth's fossilised cast (test, rates, etc.), they finally send me their long contractual thingy. I was supposed to sign it to get that damned project, which by then felt like a carrot hanging from a string. Among the clauses, accept to correct translations for
... See more
I was approached a few years ago by one of the mammoths for a specific project of a few thousand euros. There again, mammoth toxic behaviour was confirmed.
After 3 weeks of on-off negociations to wedge my diva requirements into the mammoth's fossilised cast (test, rates, etc.), they finally send me their long contractual thingy. I was supposed to sign it to get that damned project, which by then felt like a carrot hanging from a string. Among the clauses, accept to correct translations for free up to 3 years after delivery. 3 years. Together with a host of other one-sided requirements, including fixed rate for 5 years, payment penalty grid and payment terms similar to the OP. And even minimal screen resolution.

Nowhere "payment are made within xx days of invoice date", but rather on the lines of "payments are made xx days after translation end-consumer/buyer confims approval and states in writing with an official government stamp that it was gorgeous and well-executed."

The straw broke both the camel's back and any motivation I may have had to deliver a top service for further assignments. I didn't sign it, explained why in a looong e-mail and that was it: wasted time on both sides thanks to them playing close to their chests. I suppose their tactic is to wear people out like frogs in a pot of water. They allegedly get boiled without pain if the water temperature increase is very gradual (do NOT do the same at home).

If it's a company you've been working with for a while, you ought to discuss this clause. Then, if "take-it-or-leave-it", up to you. I'd sign it and see if payment terms actually change compared as before.

Philippe
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Sheila Wilson
 

Kay Denney  Identity Verified
France
Local time: 13:37
Member (2018)
French to English
3 years?! Jun 26

Philippe Etienne wrote:

I was approached a few years ago by one of the mammoths for a specific project of a few thousand euros. There again, mammoth toxic behaviour was confirmed.
After 3 weeks of on-off negociations to wedge my diva requirements into the mammoth's fossilised cast (test, rates, etc.), they finally send me their long contractual thingy. I was supposed to sign it to get that damned project, which by then felt like a carrot hanging from a string. Among the clauses, accept to correct translations for free up to 3 years after delivery. 3 years. Together with a host of other one-sided requirements, including fixed rate for 5 years, payment penalty grid and payment terms similar to the OP. And even minimal screen resolution.

Nowhere "payment are made within xx days of invoice date", but rather on the lines of "payments are made xx days after translation end-consumer/buyer confims approval and states in writing with an official government stamp that it was gorgeous and well-executed."

The straw broke both the camel's back and any motivation I may have had to deliver a top service for further assignments. I didn't sign it, explained why in a looong e-mail and that was it: wasted time on both sides thanks to them playing close to their chests. I suppose their tactic is to wear people out like frogs in a pot of water. They allegedly get boiled without pain if the water temperature increase is very gradual (do NOT do the same at home).

If it's a company you've been working with for a while, you ought to discuss this clause. Then, if "take-it-or-leave-it", up to you. I'd sign it and see if payment terms actually change compared as before.

Philippe


and if you'd died in the meantime they'd dig up your grave for you to correct their text right?

I like to wait for a few days before billing, to make sure the client is happy. I'd wait longer for a much longer text but I don't have a hard and fast definition of "longer". If they haven't complained in the meantime, I simply bill.

At the agency, we used to get people who suddenly remembered there were quality problems when reminded about the bill. The boss would charge into my office to tell me I had better check my translation, and I would tell him to first ask for a list of problems that I would willingly address, but a vague reference to the word quality doesn't count as a complaint I can look into. The list of problems would never materialise and the bill would be paid (still at the last possible minute).


Sheila Wilson
Tina Vonhof
 

Marta Esteban  Identity Verified
Spain
Local time: 13:37
Member (2014)
Spanish to English
+ ...
TOPIC STARTER
Thank you all for your answers Jul 12

Hi,

I have been working with this company for many years, although not always with the same people as these come and go. This seems to be new protocol procedure within the company for all service providers. So yes, it probably has been written by a lawyer with not much experience dealing with translators.

So on the one hand one feels tempted to simply accept since I´ve known this customer for long but on the other, if any problem arises in the future with new employee
... See more
Hi,

I have been working with this company for many years, although not always with the same people as these come and go. This seems to be new protocol procedure within the company for all service providers. So yes, it probably has been written by a lawyer with not much experience dealing with translators.

So on the one hand one feels tempted to simply accept since I´ve known this customer for long but on the other, if any problem arises in the future with new employees or whatever, I am left without defense. And I have already had some clients who never paid and leaving me in a very difficult situation to pay the translators that had collaborated in the project, whom I finally paid as it couldn't be otherwise, but leaving me nearly bankrupt for almost a year. So I think it is important that we cover our backs.

I finally sent them a modified version of the contract in which I suggested to change their paragraph by the following (fast translation from Spanish), which I picked up from some templates and examples:

"In the event that THE CLIENT wishes to raise any disagreement with the translation made by THE COLLABORATOR, THE CUSTOMER has the right to request the COLLABORATOR, within seven days after receiving the translation,to perform revisions of the translation within a reasonable period of time and without any additional cost for THE CLIENT, until THE CLIENT is satisfied with the translation.

The COLLABORATOR will make every effort to provide a quality translation that is faithful to the original text, that is accurate and consistent. However, the CLIENT's attention is drawn to the following circumstances: that some words may not be translatable, that there is no absolute equivalence of two words or expressions between two languages ​​or even within the same language, and that there is great diversity in different languages ​​or in the same language. As a result, no two translations are exactly the same. Although it is the responsibility of the COLLABORATOR to minimize this type of discrepancies, THE CLIENT has no right to reject the translation due to the particular choice of words of a translator.

If the COLLABORATOR is unable to deliver the commissioned work on the specified date, he undertakes to communicate and justify it to THE CLIENT, 48 hours in advance of the delivery date, in which case both parties will agree on a new one date of delivery, which will be incorporated in writing and by addendum to the framework agreement exemplified in Annex 1.

In case of incurring unjustified delay, the following penalty system will be applied: for each week of delay in delivery, THE CLIENT may deduct an amount corresponding to 5% of the total amount agreed."

I also added this regarding payment:


"The due dates for the payment of fees and costs under this Agreement will be the dates specified in this Agreement. Any payment for fees or costs not received by the Translator within 10 days of the due date will be considered to be subject to a 5% charge per month of delay. THE CUSTOMER accepts to be responsible for the costs incurred by the Translator to collect the late payments of THE CLIENT, including the reasonable fees of the attorneys.

If the CUSTOMER cancels in full or withdraws any part of the order once the agreement exemplified in ANNEX 1 has been signed before the COLLABORATOR completes the services, then, taking into account the programming and / or the provision of said services, THE CLIENT must pay the COLLABORATOR the part of the previous rate represented by the percentage of the total service performed, but in any case, not less than 25% of said rate."

I have not received an answer yet but I think it is because the person in charge is on summer vacation. I will get back to you on their final decision.

Again, thank you all for your contribution,

Marta
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Olavo Nogueira
 

IanDhu  Identity Verified
France
Local time: 13:37
Member (2005)
French to English


Posted via
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Don't sign the clause/agreement as it stands Jul 13

Marta Esteban wrote:

... subject to the completion of the tasks entrusted and the delivery of the materials according to the agreed delivery schedule and provided that the COLLABORATOR has received the express, final and unequivocal approval of THE CLIENT regarding to the materials delivered.


1) Insert a clause saying that the client shall provide confirmation of approval in good faith, and within a reasonable period of time;

2) Add a further clause saying that should the client be unsatisfied with the work or part of it first, the client shall inform the translator ("collaborator") promptly, furnishing all relevant information (a revision-marked draft and any end-client comments...) whereupon the translator shall make good the deficiencies if any and if slight. Otherwise the translator and agency client shall agree a quantum meruit payment to reflect the merit of the translator's work. Failing agreement, both parties shall resort in good faith to arbitration.

A client must give due recognition to a translator's efforts, taking particular account of the presence or absence, feasibility, cogency or otherwise of client instructions (part of the "good faith" requirement).

At all events, steer clear of closed-end clauses displaying an unequal balance of the respective interests. I don't think you should sign as it stands to the clause you cite: it ought to be toned down.

I managed to negotiate a quantum meruit clause with a client, so don't take no for an answer.

One also needs to weigh and consider whether the volume of work, and the rate, justify the hassle of entering into such a commitment in the first place.

As a postscript, I can't help remarking that the English of this agreement is shaky and, as I have found now and again, casts doubt on the client's ability to judge a practitioner's work competently.

[Edited at 2019-07-13 17:21 GMT]


Sheila Wilson
Marta Esteban
 


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HELP ABOUT CLAUSE ON CONTRACT DEMANDING CLIENT'S EXPLICIT APROVAL OF TRANSLATION PRIOR TO PAYMENT

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